Author: Darshita .T.Joshi, Navarachana University.
Introduction
In a rise of circumstance of rape case, the need for reforms will be perpetual. As so many incidents taking place, where someone is cut and kept in suitcase or thrown in sewage, rape on dead body and in such other diabolic manner that with the facts being atypical in every cases, in pursuance thereof, law reforms needs to remain abreast with the incidents taking place and implementation should result as effective, “Ubi jus ibi remendium”- as where there is a necessity of change, where one’s right is getting curtailed, law must provide remedy!
As when there’s a news about rape incident, our focus is on how it took place? But not on, if it did happen, what should be done. It’s not only the law in question, what we as individuals are contributing for reform.
Abstract
This article explores why Rape law is still subsisting as ineffective, discussions on recent rape cases, what’s the root cause of rape, what’s been overlooked in rape cases, is law the only issue or in dispute, or any social drawback that requires change? This article will focus on ground reality versus current laws. By analysing the relevant case laws and need for prospective reforms, this article aims to provide comprehensive overview of prevailing legal regime , offer insights into effect towards, how reforms can be formulated , capable of being constituted and enforced.
Let’s scrutinize into the complexities that hinders the rape law to be effective –
The foremost issue in rape case is Pornography, lack of sex education and overlooked from mental health perspective.
As with societal changes, we need to accept the drastic change of youths, their way of dealing with relationships. India is the most populous country with expected number of 1.46 billion, therefore we have lot of youth to pay attention to.
Entirely Ban on pornography is must for eradicating sexual violence –
As per research article by Pyschohealth journal, on “pornography and sexual violence against women in India” it states there have been children below 18 are exposed to pornography, this explains the juvenile’s mind-set when dealing with rape charges.
Pornography when consumed gives wrong sex education that increases potential risk of sexual violence against women. As per an article by BBC on “Why smartphones are skewing Indians idea of sex”, it stated 400 million people have smartphones, mostly all use whatsapp like apps to share such videos and how by exposing themselves to content like aggressive or violent sexual content , it affects their mind-set to think about consent and women doesn’t exist to be objectified.
So this a serious thing to not to be ignored at, the fact everyone is nevertheless consuming illicit content in some or other manner, then why not educate one about it.
Because if not authorities, like school, college, or government, children’s curiosity will be exposed to unsafe or unsecured content on internet. If in primitive state concepts like consent, what’s the right age to indulge into relationships, to what extent one should expose themselves to social media, or top what extent one should engage in physical acts as per their age, make them aware about cybercrimes, etc. this all will shape their mind-set and themselves in efficient way.
To educate them what’s a normal behaviour and acts like harassment, eve teasing, touching a person without their consent is not an appropriate, if any child or teen is curious about this things, there must be counsellor to help them in right manner.
Psychological issues like sex addiction, porn addiction and anger issues must be dealt, not ignored. What a child learns at primitive state, explains his or her actions thereafter.
Example, in school we have witnessed children’s fighting, indulging in violence over some very silly small cause, this indicates an issue. Rather giving that child suspension or punishment, firstly they need is counselling. Such progressive actions will indicate that this is an issue, not just a bad act.
There would have been cases of marital rape, but since it’s not criminalized, efforts should be made in regards to constituting a healthcare where husbands who have attempted or an act of sexual violence on their wife are sent. To make them aware this is against morals, to help them curb and work on their unwanted sexual urges, to guide them and help them. Since prison isn’t an option here.
Healthcare centres must address the above issues as well. This can bring a reasonable amount of prospect for policy reform.
The issue thereafter is law is inefficacious in pertaining sexual violence against Dalit women, the current act Scheduled caste schedule tribes (prevention of atrocities act) 1989 is just on paper, nothing beyond that. In regards to atrocities the rate has increased by 57,582 in 2022 (national crime branch burea).
Their rights in regards to economic, social, cultural and educational are affected. Honour killings, sexual harassment, bondage-labour, etc. other such heinous acts are done to them.
The reasons this happening in continuous regardless of law, there is gap between law on paper and its enforcement.
- Authorities itself pressurises the victims, asking them to compromise. As they are aware of their vulnerable circumstance.
- Victims mostly come from lower economic background, they are struggle to action in fear of opposite party retaliating.
- As per research article by Behan box, pertaining to sexual violence against Dalit woman’s it states, about 10% in registered cases were asked to compromise, accused’s family had threatened to change victim’s statement in F.I.R and as well as in court, 78% rate of being threatened by accused’s family.Also in many scenarios, police have itself acted, resulting their actions being ultra vire, by destroying evidence. I)Also in many scenarios, police have itself acted, resulting their actions being ultra vire, by destroying evidence.
- In the writ petition under the case of national campaign on Dalit human rights & ors vs. union of India & ors, it pointed out that despite speedy trials established there is lack of staffing in speedy trial courts , petitioner further stated that there is no proper adherence to POA act, referring to NHRC report , petitioner also stated that report also indicated risk of accused are granted bail despite being offenders, cases being not registered, Circumvention of POA act by authorities, filing of false against Dalit victims, no timely arrests , etc.
Lack of proper regulation in terms of rape on dead body
Necrophilia refers to a sexual act done by an individual on a corpse, therefore there should be regulation, governing this offence. As this is indignity in terms of the concerned decease as well as his or her family. This curtails one’s right under article 21, as in the case of Ashray Adhikar Abhiyan vs. union of India, it was interpreted, and article 21 is inclusive of protection of dignity of decease, in same manner as dignity of life. Also section 301 BNS covers the offence of inuring one’s religion by the acts of trespassing funeral or burial grounds, penalty of year prison or more , but doesn’t explicitly state the offence of necrophilia. There should be reforms in regards to this, despite sexual violence on living or dead it’s still act of disgust, inhumanity and indignity. In the case of Nithari kand, as well where the accused not only raped, but ate human flesh of minors but also after killing them, again rape on their dead body, due to lack of regulation, charges of rape on corpse couldn’t be upheld.
Unnecessary delayed by authorities, in the gruesome RG kar rape and murder case, it was found that the former principal sandip ghosh and police offers of Tala police Abhijit Mondal, caused inordinate delay in terms of seizing accused clothes and belongings that could’ve supported as prime evidence, also were arrested for this act. This explains despite the law, there are loop holes at administrative part and its enforcement.
In another KIIT case, where the victim was emotionally abused and blackmailed to leak private photos of her, by her ex-boyfriend and how university lacked taking any actions, despite the efforts and attempts by deceased Prakriti Lamsal, no actions were taken up, such cases highlight the malafied actions by authorities – government, police, colleges etc. causing delay and sometimes leading to NO justice.
Apart from above stated issues there are-
- Social issues- despite the society evolving, many cases go unreported due to the stigma.
- There have been cases of molestation, assault to other genders belonging to LGBTQ+ community.
- Influence and power of politicians or (dominating) money-power, playing role in manipulation of case leading to tampering of evidence, false statement recorded (Bilkis Banu), case being not registered etc.t
- No proper regulation for Martial rapes.
- Corruption in internal system leading to more complexity in rape case.
- Gender, caste and religion base discrimination.
Conclusion
The most horrifying problematic circumstance is, because of large number of sexual violence, domestic violence, emotional abuse against women, the attention and concern each and every case requires loses, because of such incidents happening in every minute in fact, makes it later on normal and common situation for society to encounter. Because of which applying death penalty becomes another problem, there are so many cases, how does one draw line in terms of rarest of rare case, recently a minor girl was raped and her dead body kept in suitcase, unfortunately, this won’t be the first diabolic incident, because of which reforms needs to focus on enforcing rape laws, bring amendments where it’s needed, stricter regulations over the authorities especially police officers in terms of rape case.
Suggestion
- Society must stay united despite communal violence, because there must be eradication of racial, religion and caste-status based discrimination, every human deserves humanity and justice, each one of us must stand for justice.
- Sex education must be spoke on more than pornography exposing sex in wrong manner.
- Healthcare must address and take initiative’s to talk on sex addiction and encourage counselling.
- Minors should be monitored by their parents and guardians, ensure they are not consuming wrong things on social media, considering their age. Therefore phone or any electronic device use should be made limited to no, for them.
- Parents, friends and relatives should openly talk about issues faced by women in terms of harassment or sexual violence and create safe place, ensuring encouragement to talk about it, without making them feel guilt or shame about it. Many cases have taken place, victim being threaten to be exposed to her parents, gave up on her life. Nothing is bigger than one’s life.
- Law should be reformed time to time, focus on more implementation perspective, regulating movies, mandate film industry to showcase if any act of domestic violence or sexual violence, there must be label showcasing we do not encourage such acts and are prohibited, this must be showcased before the starting of film in disclaimer as well as when such acts are being showcased while in movie or any in media form.
FAQs
- What is circumvention of law or any act?
Answer: It means when authority or body or person avoids or obstructs in terms of applicability, purposely avoiding the use of particular rule, regulation, statues law or any act etc.
- What does an act of ultra-vire means?
Answer: When an authority be it police or any person exceeds his or her actions which are not directed or told to be done, for example- hiding evidence or tampering lab reports.
- What does it mean to be a rarest of rare case?
Answer: It was established in Bachan Singh vs. state of Punjab, it means case of extraordinary nature, very gruesome , most heinous crime, such case where from human capacity or perspective its diabolic in nature to do so, e.g.’ Nirbhaya gang rape case. It ensures death penalty is not imposed capriciously.
References
- https://journals.sagepub.com/doi/10.1177/26318318211023935
- https://journals.sagepub.com/doi/10.1177/26318318211023935
- https://www.bbc.com/news/world-asia-india-46602885
- https://www.bbc.com/news/world-asia-india-46602885
- https://www.thequint.com/news/crime/crimes-against-sc-st-ncrb-data-five-years-atrocities?utm_source=chatgpt.com#read-more
- https://behanbox.com/2022/04/12/dalit-survivors-of-sexual-violence-deal-with-blocks-to-justice-at-every-step/
- https://blog.ipleaders.in/unmasking-necrophilia-in-india-a-legal-examination-under-bns/#Legal_rights_of_dead
- https://economictimes.indiatimes.com/news/india/rg-kar-medical-rape-murder-case-kolkata-court-pronounces-accused-sanjay-roy-guilty/articleshow/117349795.cms
- https://www.legalserviceindia.com/article/l440-Scheduled-Castes-and-Tribes-Act-.html?utm_source=chatgpt.com
- https://vidhilegalpolicy.in/blog/an-analysis-into-the-laws-governing-necrophilia-in-india/
- https://www.thehindu.com/news/national/odisha/nhrc-submits-a-damning-report-on-nepali-girl-death-at-kiit-university-campus/article69386680.ece#:~:text=On%20February%2016%2C%20a%2020,had%20ignored%20complaints%20of%20harassment.
- https://economictimes.indiatimes.com/news/india/cops-delayed-seizing-belongings-of-rg-kar-accused-by-two-days-cbi-officials/articleshow/113451896.cms?from=mdr
