November 2006 
Year 13    No.120


Victim as criminal

Rape trials in India


In a crowded corridor of a dingy court complex, a male police officer is asking a young girl about the
sexual assault she faced a few days earlier. Despite repeated requests to bring in a lady police officer to interview the girl, the policeman refuses, saying there was no lady officer of that rank at his police station. The perpetrator here happens to be the husband of a police officer and the policeman’s cousin. The young girl, who has been through the most harrowing experience of her 12-year-old life, has, even more traumatically, to narrate this to the police officer. She has to describe the manner in which she was assaulted, her physical state of undress at the time and what exactly had been done to her by the perpetrator. The policeman kept reminding her of the fate the perpetrator’s family would meet if she made these statements. She later told me that she did not want to pursue the case.

This was the start of a criminal trial in a rape case. And it is not because the perpetrator was related to a policewoman that the victim faced this ordeal. It does not matter who the perpetrator is. I have not yet mentioned her ordeal at the hospital where she will have to wait for many hours to go through an invasive medical examination to determine if she was raped. I have not mentioned her examination in the court and of course her cross-examination by the lawyer for the accused.

I would not want to file a criminal complaint in case of rape. For a rape victim the legal solution is worse than the crime.

The incident I refer to took place in Delhi. The national capital region of Delhi has perhaps the highest number of cases registered and the lowest rate of conviction in rape crimes. This is despite the fact that Delhi is perhaps most well equipped in the entire country to deal with these cases; it has a good rate of disposal and also a good number of judges who deal with cases. The state of Delhi has also made some potentially radical amendments in the Criminal Procedure Code enabling judges to deny bail to perpetrators of this crime.

Having looked at cases in Delhi for some time, I was curious about the way cases were handled elsewhere. I dreaded the manner in which these cases may have been handled in Uttar Pradesh and Bihar, Kashmir and the North-east. I was, however, not prepared for Bombay.

When we heard of the manner in which a drunk policeman raped a young girl at a city police station, it was shocking to say the least. Primarily because this took place in Bombay. I met the girl about a month after the incident took place, at a meeting that was arranged by police officers at the request of the National Commission for Women. That meeting revealed even more shocking details. One month after the incident, neither the girl nor members of her family had a copy of the FIR (first information report). She did not know the contents of the report of the medical examination conducted on her. She was not advised to consult a lawyer. As I told my friends in Bombay, in Delhi the girl at least gets a copy of the FIR!

Under the law, it is mandatory to receive a copy of the FIR. The Supreme Court and various high courts have repeatedly stressed the manner in which rape victims need to be treated by the police and the support that needs to be given to them. However, more often than not, and for reasons beyond anyone’s comprehension, these guidelines are not followed. I will attribute this to ignorance rather than anything else.

In the Bombay case, an officer of the rank of joint commissioner of police was personally supervising the case. The police were extremely protective of the girl and her family, and ensured that the media did not hound the girl. They dismissed the accused policeman immediately and conducted a speedy investigation. But they forgot to address the girl’s legal rights. Compensation only came after the girl filed a petition in the high court. A copy of the FIR was only given to her after our meeting with the police commissioner.

From my limited experience, I can cite hundreds of instances when rape victims are not given the basic information that ought to be given to them when a complaint is lodged. One experience that I distinctly remember is when an assistant station house officer told the mother of a rape victim that she need not consult me as there was no need for her to have a private lawyer. He had the audacity to say this in front of me, knowing that I was the victim’s lawyer! He refused to reveal the contents of the medical report, saying it was confidential, and refused to show them the statement by the girl and her mother which he had recorded, stating that there was no need to show them that. I knew then and I know now that the accused had officially received copies of everything.

Sexual assault and abuse of women and children are some of the most common and heinous atrocities committed on women and children. With no preventive mechanism in place, more and more people are becoming vulnerable targets of abuse and the numbers are increasing at a frightening pace. These cases rarely get reported and even if reported rarely result in conviction. There is absolutely no deterring factor for the perpetrator and this is one of the reasons why the number of cases of abuse has increased at such an alarming rate.

A bare perusal of cases that have been disposed in the last few years reveals some very interesting facts. Prosecution agencies routinely blame the prosecutrix as the root cause of acquittals in these cases without actually understanding the reasons why the prosecutrix turned hostile and the circumstances under which she did so. The fact that there are other reasons why a case may result in acquittal is something that has not been looked into. For instance, one of the main reasons for acquittal is also the fact that during a trial the prosecutrix is unable to withstand cross-examination, does not support the prosecution, is not available, etc. There are also instances where there has been inadequate evidence and lack of corroboration etc. which in fact reflect on the investigating agency and not on the prosecutrix at all. One glaring problem in the entire system is that prosecution agencies work in different compartments and are unable to streamline and coordinate a strategic intervention in each case. They are also severely overburdened. The provision of adequate legal services to victims is therefore extremely critical. Unfortunately, the prosecutor’s office is unable to provide the support that victims need, as it is overburdened with cases and does not have infrastructural support. It is thus vitally important that we strengthen their services.

In 1995, the Supreme Court of India passed a judgement wherein it said that a rape victim would have the right to have her lawyer and it was the police’s duty to provide her with the same and also to make an application to that effect in court. Today, in the year 2006, this procedure is followed in Delhi alone.

The Delhi police initiated a rape crisis intervention centre wherein they brought together NGOs (non-governmental organisations) that would help victims of sexual assault. Though a laudable effort, this has remained ineffective primarily due to lack of coordination and the absence of any provision of continuous legal support to victims.

In 2005, the Delhi Commission for Women took the initiative to start, in cooperation with the Delhi state home department and a private law firm, a 24-hour helpline called "Rape Crisis". Police and prosecutors are active participants in the programme. The programme offers a 24-hour legal helpline that is accessed both by the victims and the police to ensure that a lawyer is informed as soon as an incident of rape is reported. Apart from attending to the phone call and then going to the police station, the hospital and the courts, the victim is advised about her legal rights and is given full protection through the trial, interventions made in the higher courts if necessary and compensation given from the small fund that the Delhi Commission has. Assistance in providing shelter, medical support and education is also an integral part of the programme with support from other NGOs.

The legal services entail helping the victim lodge a report at the police station, helping her to record a statement, assisting the police in ensuring that relevant provisions of the law are applied in each case, ensuring sensitive handling of the case by the police, opposing bail applications made by the accused, assisting the prosecutor in the case and representing the victim’s interest during the entire trial and, if required, at an appellate stage.

Our experience in running the cell has not been particularly refreshing. The problems within the system, the lack of witness protection, archaic modes of investigation and the total reliance of the entire criminal justice system on oral evidence is alarming and makes it all seem futile. The cell has handled over 400 cases in the past year. Results are yet to show, as the police are still not entirely accustomed to the idea of dialling the helpline number while victims are still threatened by perpetrators and fail to speak out in court.

But there is hope. For a large number of victims who are totally clueless about the complex legal system, the cell helps. It has also helped many diligent police officers at the hospitals who are made to wait endlessly just because it is a medico legal case and nobody wants to attend to it. It has also helped many prosecutors in providing legal research, interviewing the victim and her family and of course provided the much needed handholding during a trial.

(The telephone number of the 24-hour helpline, Rape Crisis, is 23370557. Rape Crisis works out of Delhi and covers Delhi alone and not the entire NCR region.)

(Aparna Bhat is an advocate, Supreme Court of India, and part of the initiative to assist victims of rape.)




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