Failing Nirbhaya: Lessons from the ten years of the Criminal Laws (Amendment) Act, 2013

Recently published research shows that a large number of cases involving gender-based violence fail to enter the system, even when the victim dies. (Representative Image)

The 2012 Nirbhaya gangrape sent shockwaves across the country. Parliament, responding swiftly to the public outcry that followed the incident, amended a host of substantive and procedural laws relating to crimes against women. It recognised many new offences, including acid attack and stalking. It also increased punishments for six offences under the Indian Penal Code [‘IPC’], including permitting the death penalty for repeat rape offenders.

Ten years into the enactment (the amendments were passed by Lok Sabha on March 19, 2013, and Rajya Sabha two days later) of the Criminal Laws (Amendment) Act, 2013, [‘2013 Act’] we find that the rate of crimes against women has risen from 41 in 2012 to 64.5 in 2021. These cases battle tardy investigation, judicial apathy and gender insensitivity.  Further, for every case that finds its way into the system, there are many that go unreported. This is particularly true for cases involving intimate partner violence.

Sexual Violence Cases

The 2013 Act attempted to keep up with evolving notions of coercion and “consent”. It defined consent to be an unequivocal voluntary agreement to engage in a particular sexual act, either through verbal or non verbal communication. But even as the law attempted a nuanced view of consent, it continued to disregard the issue of marital rape. The ramifications of this are self evident – an analysis of National Family Health Survey of 2015-16, showed that 99.1 percent of sexual violence cases had not been reported.

Cases that are reported and enter the criminal justice system meet a dismal end. Our analysis of 263 judgments of rape cases tried by the Mumbai Sessions Court [‘court’] revealed a 95 percent acquittal rate. Over 60 percent of the cases we studied involved consensual relationships between the accused and the victim.

Consent Trivialised

Many of these involved a “promise to marry” – cases where consensual sex is categorised as rape if the woman gave her consent based solely on a promise of marriage and that the accused had no intention to fulfill such a promise. In these cases, victims turned hostile and went on to marry the accused. The role of the court was limited to playing peacemaker and it did not feel the need to engage with the question of consent, because the question itself was irrelevant.

In cases where the court had an opportunity to contend with the issue of consent, it displayed flagrant gender insensitivity and reinforced stereotypes. Even though the law specifically provides that absence of physical resistance cannot be regarded as consenting to sexual activity, the court took absence of injuries on either the accused or the victim; victim’s failure to raise an alarm; her appearing “too calm” after an assault; or not notifying the authorities immediately after the assault to evidence consensual sex.

Gender Violence Cases

Recently published research shows that a large number of cases involving gender-based violence fail to enter the system, even when the victim dies. The study of autopsies conducted by two hospitals in Mumbai found that out of the 1,467 female dead bodies that underwent autopsy, 840 were cases of unnatural deaths. Of these, evidence of gender-based violence was found in 181 cases (21.5 percent). Even though the majority of these deaths were caused by burns, hanging and poisoning, they were registered as suicides or accidents and not investigated as crimes by the police.

Reported cases of cruelty and harassment meet a similar end to those involving sexual violence.. Our analysis of 98 judgments in cases of cruelty and dowry deaths showed that the victim died an unnatural death in 77 cases. The accused was convicted of the offence of cruelty/dowry death in only seven cases. The court insisted on proving specific instances of cruelty by identifying the exact date, time and place of cruelty. The court discarded testimonies of the victims’ families - often finding them “vague”, rejected dying declarations because of superficial inconsistencies in these statements and acquitted the accused on account of procedural and evidentiary technicalities.

2013’s Unfinished Agenda

Taking stock of how the criminal justice system implements laws relating to violence against women, it is clear that the legislature has barely scratched the surface of the problem. For one, it has shied away from tackling intimate partner violence head-on.

The issues it has attempted to address remain largely on paper, because law by its very nature cannot possibly account for situations that arise during the course of its application such as police’s unwillingness to investigate, marriage between parties, or the blatant misogyny that courts display against women. It hasn’t been and is unlikely to be sufficient to make society safe for women.

Neha Singhal leads work in the area of Criminal Justice and Naveed Ahmad is a Senior Resident Fellow with the Criminal Justice Team at Vidhi Centre For Legal Policy. Views are personal and do not represent the stand of this publication.