The Problem of Sexual Violence in India

Victimization of Women to Sexual Violence is a global phenomenon that continues to spread widely,[1] crimes like Rape, Sexual Assault, Acid Attacks are on rise around the world and has emerged as a form of gender based violence aimed at silencing and controlling women and young girls, these crimes leave behind a very traumatic effect on the victims both physically and mentally, as a result women are more subjected to physical, mental and social sufferings.[2] The media coverage of the brutal rape of a 23 year old female student on Delhi bus in 2012 caught the attention of the world’s media.[3] While this case is just one in a long list of horrific incidents of violence directed against women across the globe, it leads to an international debate about the plight of sexually and physically victimized women. Distressingly, the young woman’s death represents just the tip of what seems to be an ever expanding iceberg of violence against women (henceforth VAW) in India.[4]

In India, even though legislations[5] have been brought and piecemeal amendments, substitutions and deletions in penal procedural or special and local laws have been made to ameliorate the conditions of women victims, and to handle these crimes effectively, but they do not appear to have achieved their intended purpose in full measure and the process of prevention of victimization and protection of victims, is facing many challenges.[6] The main reasons for the present plight of women victims and the seemingly impossible situation about prevention of VAW are failure of the existing laws and that of the law enforcement agencies to effectively deal with problem. There are several causes of the failure, a majority of which are inherent in the working of criminal justice system (henceforth CJS).[7] Particularly the flexibility of Indian laws would not suffice to curb this social menace which has given much scope to the culprits to advance in such heinous crime.

The Criminal Justice System in India, since its establishment under the colonial regime, has been concerned with the accused and his rights. The British India’s CJS can be seen through the enactment of Code of Criminal Procedure 1898 (henceforth CrPC) followed by the CrPC 1973 and the Indian Evidence Act 1872 (henceforth IEA) are accused friendly. After Independence, even framers of our Indian Constitution emphasized upon the rights of the accused persons. [8] India derived its criminal justice system from the British model and the penal philosophy in India has accepted the concepts of prevention of crime and treatment and rehabilitation of criminals, which have also been reiterated by many judgments of the Supreme Court. The plight of victim’s position and protection has not drawn any major concern from either the policy makers or Judiciary and the rights of victims are still often overlooked. Unlike the accused, victims in India have virtually no rights in criminal proceedings, and the state undertakes the full responsibility to protect the interest of victim. When state agencies fail to successfully prosecute offenders, as often in many cases, victims are left to either suffer injustice silently or seek personal retribution by taking the law into their own hands.[9] Ironically, the "guilty man is lodged, fed, clothed, warmed, lighted and entertained in a model cell at the expense of the State, from the taxes that the victim pays to the government."[10]

While on one hand an accused enjoys various rights and privileges under the Indian CJS, including the constitutional rights. But the victims of crime are not recognized as a part of it. The victims of crime do not have any right to participate in the investigation process and the same being the exclusive purview of the police and the also do not have any right to participate in the trial proceedings unless the police consider it necessary.[11] Defective investigations are a serious problem throughout the country. Often the persons with rich and influential background or those with political patronage influence the police to carry out sloppy investigations so that a charge sheet is not filed within the statutory time limit. Police investigations raise considerable doubts, particularly in cases where the police themselves are perpetrators. Such failures have often led to a call to entrust such investigations to agencies like the Central Bureau of Investigation, however its own investigations are not above suspicion.

The victims of crime have been, therefore, ignored both by the law as well as by the State. Victims being victimized and ignored, face various problems especially the victims of rape and molestation, acid attacks who undergo lifelong trauma and social stigma. Immense harassment is caused to these victims, at the time of recording their statements on oath in the trial courts, repeated adjournments forcing them to visit Courts time again and again, makes them traumatized and increases their mental agony during judicial proceedings.[12]

However over the last twenty years concern on victim’s rights and their welfare has increased and there has been significant change in the judicial approach on rights of victims and the concern of the courts and the need to have a law on victim compensation and a comprehensive law on victim justice has been reflected in their judgments[13] and reports. There is a continuous effort to enact a national policy for victims in India. Because of judicial activism demand has arisen for recognizing the rights of the victims of crime as an integral part of our CJS so that justice can be done in a real sense. Various new trends have, therefore, started emerging regarding the victims and their rights under the Indian CJS. Today it is the centralized subject, to professionals, officials and to the general public. The media have given amplified attention to the victims, and politicians have responded by appearing for improving the position of victims. The state governments have coming out with improved compensation schemes and legal aid and assistance to victims. But unfortunately such provision is not adequate, and some sociologist and criminologist have argued that victim’s place in CJS has not been improved, upsetting the balance between state and the offender where a crime is still seen as an attack against the state or the society as a whole, and not just an attack on the victim.[14]

In the Indian CJS, the term ‘victim’ legally defined only in the year 2008 when section 2(wa) was inserted in the CrPC based on the term defined in UN Declaration of Basic Principles of the Justice for Victims and Abuse of Power 1985. The delayed incursion of the term ‘victim’ to our CJS has meant that victim has largely remained marginalized person in the Indian CJS until 2008. But still it is indispensable that the spirit of the UN Declaration of Basic Principles of the Justice for Victims and Abuse of Power1985 need to be implemented in Indian CJS and this will bring victim orientation in our laws.[15] Now it is time for our CJS should move towards victim-orientation. It is imperative for the legislature and the apex court also to recognize certain rights of the victims of crime, as they are recognized for the accused, relating to their inter actions with the police, the prosecution and the court where the need for fair treatment, information, guidance, protection and assistance become crucial.[16]

It is high time that our CJS should look to enable the participation of the victim at various stages of the trial. For instance, the victim needs to be heard at stages like the framing of charges, discharge proceeding, bail hearing, probation hearing, and sentencing, compensation. The victim would then be in position to factor her experiences into the criminal justice process without adulteration of any kind. Many developed countries like USA, Australia have introduced innovative ‘victim impact statement’[17] mechanism in their CJS to hear the victim’s views in a criminal trial. If same measures are introduced in Indian’s CJS, it can improve the quality of justice for victims of sexual crimes.[18]

[1]N.Westmarland and G. Gangoli, International Approaches to Rape (Bristol: Policy Press, 2011); See J.P. Hodge, Gendered Hate: Exploring Gender in Hate Crime Law (New England: Northeastern University Press, 2011) 2

[2] L. Kelly, J. Lovett and L Regan, "A Gap or a Chasm? Attrition in Reported Rape Cases" Home Office Research, Development and Statistics Directorate, (2005) 293

[3] BBC, ‘Delhi gang rape victim dies in hospital in Singapore’ 29 December 2012 Available at:

http:// www.bbc.co.uk/news/world-asia-india-20860569, accessed on 23.5.2017

[4] S. Walby and A. Myhill, ‘New Survey Methodologies in Researching Violence against Women’, 41 British Journal of Criminology (2001) 502

[5] The Criminal Amendment Act, 2013, The Sexual Harassment of Women at Work place ( Prevention, Prohibition and Redressal) Act 2013,

[6]The proper mechanisms for effective implementation of existing laws and provisions and procedure for compensation awards, organizations for rehabilitation of victims.

[7] Laxmi Devi , Crime, Atrocities and Violence against Women and Related Laws and Justice (New Delhi: Anmol Publication Pvt. Ltd, 2009) 177

[8] The Indian Constitution and the Code of Criminal Procedure, 1973 confer certain rights and privileges on an accused and provides certain safeguards such as :Rights of Equality and equal protection of laws(Art 14); Rights against Ex-past-facto operation of law(Art 20(1)); protection against Double Jeopardy( Art 20(2), sec300,Crpc); protection against self- incrimination (sec 313, 315(1) Cr.p.c, Art 20(3)); Protection againsy arrest and detention(Sec 56,57,167 Cr.p.c, Art22(2)); Right to know ground of arrest and detention (Sec 50,173, Crpc,Art22(1));Right to consult and to be defend by a lawyer of one’s own choice (Sec 303,304 Crpc abd Art22(1)); Presumption of innocence throughout the trial, (Sec, 102,105, Indian Evidence Act);Right to legal aid, (Sec304 Crpc, Art 39A); protection of life and personal liberty (Art 21).

[9] N.R. Madhava Menon, Victim’s rights and criminal justice reforms, The Hindu, Mar. 27, 2006, available at http://www.thehindu.com/2006/03/27/stories/2006032703131000.htm.

[10] K.D. Gaur, Commentary on Indian Penal Code (Universal Law Publishing Co. 2006)

[11] Wing-Cheong Chan, Support for Victims of Crime in Asia, (New York: Routledge Tylor and Francis Group, 2008)167

[12] Harsh Dobhal, Writings on Human Rights, Law, and Society in India: A Combat Law Anthology, (New Delhi: Human Rights Law Network, 2011) 109

[13] Delhi Domestic working women Forum V. National Commission for women, (1994) 3 SCC 11, (the indicated the broad parameters for assisting the victims of rape and directed payment of Rs 10,000as exgratia to each of victims), In Gudalure M.J Cherian V. Union of India,(1995)3 SCC 387.( the of UP was directed to pay sum of Rs.2,50,000/- as compensation to Rape Victims on whom rape had been committed by unidentified assailants), In state of Gujarat V. H’nable Highcourt of Gujarat, (1998) 7 SCC 392.( the question of payment of compensation to victims of crime from the wages of prison labour came up for consideration), Laxmi vs. Union of India , SC,Writ Petition (Criminal) no. 129 of 2006(The Court directed the State Government to pay Rs. 3 lakhs as the after care and rehabilitation cost and to undertake measures for the proper treatment, after care and rehabilitation of the victims of Acid attack

[14] Katherine S. Williams, Text Book on Criminology, (Delhi: Universal Law Publishing Co.Pvt.Ltd, 2001) 98-99

[15] The Criminal Law (Amendment) Act, 2008

[16] G S. Bajpai, "Victim-Blaming by Court",Deccan Herald, (Dharwad, Karnataka),September 27,2017, 10

[17] A ‘victim impact statement’ is a written or oral statement made as part of the judicial legal process, which allows crime victims the opportunity to speak during the sentencing of the convicted person or at subsequent parole hearings, The first such statement in the United States was presented in 1976 in Fresno, In 1982, the Final Report of the President’s Task Force on Victims of Crime recommended that "judges allow for, and give appropriate weight to, input at sentencing from victims of violent crime." In 1992, the United States Attorney General released 24 recommendations to strengthen the criminal justice system’s treatment of crime victims. The Attorney General endorsed the use of victim impact statements and stated that judges should "provide for hearing and considering the victims’ perspective at sentencing and at any early release proceedings." In 1991, the Supreme Court of the United States held that a victim impact statement in the form of testimony was allowed during the sentencing phase of a trial in Payne v. Tennessee 501 U.S. 808 (1991). It ruled that the admission of such statements did not violate the Constitution and that the statements could be ruled as admissible in death penalty cases. By 1997, 44 of the American states allowed the presentation of victim impact statements during its official process, although until 1991 these statements were held as inadmissible in cases where the death penalty was sought.

[18] Supra note 16