-By Sanvi Bhatia and Sukrut Khandekar
Of late, a concerning trend in relation to rape laws in India can be observed. Even though India recorded around 88 rape cases a day in 2019, every once in a while there has been one particular case like the Delhi gang rape case of 2012 or the Hyderabad gang rape case of 2019, which has captured public attention. This is followed by massive public uproar, significant media coverage, public demonstrations and a demand for stricter punishment for the rapist(s). Consequently, there is a knee jerk reaction by the government of the day to appease the public in the form of increased stringency in the criminal justice system. This allows the society to uphold its collective conscience by alienating the rapist as one bad man, one monster that deserves to be punished. The fury, however, dies down and the statistics remain as disheartening as ever. This cycle repeats itself after every new ‘big case,’ without any major fundamental change.
Merely increasing the stringency of the punishments may be interpreted as a move to mask the inability of the state machinery to prevent cases of crimes against women and establish appropriate support systems for survivors by making systemic changes.
The night of 22nd August, 2013 shook the state of Maharashtra after a photo-journalist was brutally gang raped by 5 men in the Shakti Mills compound of Mumbai. Seven years later, Maharashtra government introduced the Shakti Bill in the Vidhan Sabha. The bill was modelled after the Disha Act, introduced by the Andhra Pradesh government a month after the Hyderabad gang rape case of 2019. The bill, among other changes, seeks to amend certain sections of the Indian Penal Code 1860, Code of Criminal Procedure 1973, and the Protection of Children from Sexual Offences Act, 2012 (Hereafter referred to as the IPC, CrPC and POCSO, respectively) as applicable to the state of Maharashtra, so as to increase the stringency of punishments for various offences like rape, acid attack, sexual abuse against children, etc. The bill seeks to increase the term of imprisonment for the aforementioned crimes, and even adds the capital punishment to section 376 of the IPC that prescribes the punishment for rape. The bill also provides for the completion of investigation within 15 days and that of trial within 30 days.
While the introduction of stricter punishments might provide a mirage of justice, it is consistency in the implementation of the existing laws and not a mere increase in the strictness of punishments that will act as the real deterrent to rape. The renowned Italian criminologist Cesare Beccaria propounded his theory of deterrence (1963), in which he explains the nature of crime and the way in which it can be reduced. He argues that deterrence with regards to criminal offences is the belief that the possibility of punishment can dissuade individuals from committing crime, and subsequently lead to a decrease in the chances and degree of criminality in society. He talks about three key elements that are fundamental to ensure deterrence: Certainty, Celerity, and Severity.
Certainty refers to the certitude of due process, celerity refers to the swiftness in the disposal of justice, and severity refers to the stringency of consequences that one would have to face as a result of committing an offence. Though increasing the stringency of punishment might ensure the component of severity, it is only when perpetrators know that the punishment will be certain, swift and uniformly applicable irrespective of their socio-economic standing, can deterrence be ensured in the real sense. The realist school of thought talks about the concept of a ‘bad man’ who cares little about ethics and morals, and instead his actions are only dictated by whether or not they will lead to punishment. For such a person, deterrence can only be ensured if the state keeps all three of these elements in mind while drafting a legislation. Moreover, the state must ensure the consistent and uniform application of existing laws, so as to prevent the disproportionate incarceration of the members of marginalised communities. While the introduction of deadlines for the completion of investigation and trial is a step towards celerity, the government fails to recognise that adequate state machinery is a precursor to ensuring this swiftness. The recent reports regarding the vacancies in the Bombay High Court and the Maharashtra Police paint a grim picture. The Maharashtra Police is understaffed by 28,550 police officers, while the Bombay High Court only has 64 judges against the sanctioned strength of 94. Further, data reveals that 69% of all cases tried under the POCSO Act by the special courts took anywhere between 1 to 10 years, despite the fact that it provides for the completion of the trial within a year of taking cognizance of the offence wherever possible.
Given the failure in implementation of similar clauses in previous legislations, and the severely starved state machinery, there is little reason to believe that the Shakti Bill will be able achieve what predecessors like POCSO couldn’t. Till the time the state is able to plug these gaps, over-ambitious clauses mandating the completion of investigation and trial within the stipulated time periods seem elusive.
Moving to Beccaria’s third element, i.e. Severity, while the Shakti Bill is successful in introducing stricter punishments, the intention behind the same is questionable. The token increase in the stringency of punishments only acts as a consolation prize to a distressed populace. This is apparent from the fact that the same government who introduces death penalty for rape, does little to ensure the availability of well-equipped treatment centres and prevention mechanisms to deter sexual harassment. It is the need of the hour for the government to provide higher funds for the strengthening of law enforcement bodies, include sex education in school curriculums, and initiate a more open conversation about the significance of consent and what it really means. Sensitisation drives for medical personnel, judicial officers and the police will somewhat ease the discomfort of reporting rape cases. Moreover, crimes like cat-calling, voyeurism, domestic violence, stalking, etc. should be dealt with seriously and the society as a whole must stop disseminating cultural media that normalizes these forms of harassment. When we condone these ‘lesser’ forms of crimes, we empower the perpetrator to carry out more heinous crimes. Hence, the uncomfortable question that first needs to be addressed is what makes a person sufficiently dehumanised to act on the desire to violate someone’s sexual sovereignty? While the society seeks comfort in alienating the rapist, what we must contemplate over is, was the perpetrator born this way, or was he fashioned to be so?
It is commendable that the Shakti Bill mandates rehabilitative institutional services to the victim within a day of her approaching the said institution. However, the government again indulges in the overestimation of its own institutions. We believe that in order to ensure an effective legislation, the government should have first taken stock of the state of its institutions, and hence focused on a more holistic institutional change rather than trying to tackle such a complex issue with a legislation that is not well thought of.
In conclusion, the Shakti Bill of 2020 aims to provide higher stringency as a trade off against institutional reforms that are actually necessary in order to ensure real deterrence, by creating certainty of conviction. And while it is the prerogative of the government to act as an engine for social change, the Shakti Bill appears to be a shallow attempt to appease the public, without actually bringing in any well carved out action, that would help in reforming the very society who creates that ‘one monster.’
[Sanvi Bhatia and Sukrut Khandekar are students at the National Academy of Legal Studies and Research, Hyderabad]