Why we all failed Nirbhaya

<pre><pre>Who is (not) a citizen?

Last year, on December 6, numerous Indians celebrated the news that the Telangana police had shot the four men accused of raping and murdering a young veterinarian on November 27 on the outskirts of Hyderabad, while allegedly tried to escape. What can be called deprivation of liberty in legal parlance has earned the police great praise on social media. For many, the lust for blood was understandable – it was the reaction of a nation disappointed with a slow and inefficient criminal justice system and desperate for a "quick solution to justice", even if it meant a questionable police encounter.

It has been seven years since another young woman was raped and brutally abused on our streets. Nirbhaya, as the 23-year-old graduate of physiotherapy became known, was attacked in a moving bus in Delhi on the night of December 16, 2012 by a gang of six – one of them a teenager. The ferocity of the attack, which led to her death 13 days later, triggered a nationwide wave of anger and spontaneous street protests that forced the government at the time to change India's laws on sex crimes within three months. A quick court sentenced the defendant in less than nine months and sentenced the four surviving adult convicts to death – a fifth was found dead in his prison cell under mysterious circumstances. However, lengthy legal proceedings have delayed the executions.

Now, finally, as scheduled on February 1st, the executions give the country another opportunity to celebrate the retaliatory system. Many who are fundamentally opposed to the death penalty admit that the unimaginable brutality against Nirbhaya justifies nothing less than the death penalty. "The imposition of the death penalty as a result of a public outcry is not lawful. In most cases, a life sentence without parole is sufficient," says criminal psychologist and lawyer Anuja Trehan Kapur, the emergency nirbhiya Ek Shakti, a nonprofit organization that does sexual activity Survivors supported. "In the case of rape in Delhi, however, the behavior of the rapists after the crime showed no sign of reform. However, after seven years, I am not sure what the death penalty will be for [family of the] Victims and the criminals. "


A direct consequence of the Nirbhaya case was the adoption of the 2013 Criminal Law Act (amendment). Among other things, the new law expanded the definition of rape, made it a criminal offense, and increased prison sentences for most types of sexual assault and death penalty in cases where the rape caused the victim's death or left it in a vegetative state. According to the law, a police officer who refuses to submit a FIR (First Information Report) can face up to a year in prison or a fine or both.

Since then, two other important laws have come into force. The outrage at the kidnapping, rape and murder of an eight-year-old girl in Kathua, Jammu and Kashmir in January 2018 was followed by the passing of the Law on the Change of Criminal Law 2018. The law provided for the death penalty in cases of rape in which the girl was younger than Is 12 years old and orders the investigation and court proceedings to be completed within two months. In August last year, the 2012 Child Protection Act against Sexual Offenses (POCSO) was amended to introduce the death penalty for the crime of not killing children through pervasive sexual assault.

NCRB data show that the number of reported rapes increased by 34 percent between 2012 and 2018 – from 24,923 to 33,356

Despite these legal changes, there has been no decrease in rape cases in the country. According to the National Crime Records Bureau (NCRB), the number of rapes reported rose from 24,923 in 2012 to 33,356 in 2018 – an increase of 34 percent. While several experts attribute the increase to the fact that more women are willing to report rape, the increase in rape crime is worrying – 52 cases of rape among a population of 1 million in 2018 compared to 43 in 2012. In 2016, the number was 63.

"We have strict criminal law to combat sexual crimes against women, but there are no systematic studies on how the 2013 Criminal Law Act was implemented locally," said Prabha Kotiswaran, professor of law and social justice at King’s College in London. Poor law enforcement is a serious problem. For example, the 2013 law requires police officers to submit FIRs even if the reported offenses have occurred in areas outside their jurisdiction. The regulation is called "Zero FIR". However, this is often not adhered to. In the case of rape and murder in Hyderabad, her family had turned to the Cyberabad police when the veterinarian was initially missing on the night of November 27, 2019. The police, the family said, declined to file an FIR.

The day after the incident, a woman from Sindupur Village, Uttar Pradesh's Unnao District, reported an attempted rape. However, the police officers told her that they would only know if there was a rape. Indifference is shocking in a district where 86 cases of rape and 185 cases of sexual harassment were reported between January and November 2019. In Unnao, a survivor of the rape of five men, including their alleged rapists, was beaten, stabbed and set on fire on December 5, 2019. The woman, who was 90 percent burned, died the next day at Safdarjung Hospital in New Delhi ,

Unnao also became famous when a minor girl accused former BJP MLA Kuldeep Singh Sengar of raping her in 2017. A Delhi court sentenced Sengar to POCSO and sentenced him to life imprisonment on December 20. Despite the conviction, the court struck the Central Bureau of Investigation (CBI) that conducted the investigation for procedural reasons. The agency has not assigned an officer to the case as required by POCSO. Although a rape survivor has the right to record her testimony at a location of her choice, the Unnao girl has been called to the CBI office several times to record her testimony. The charge was filed almost a year late.

The CBI similarly pulled flak in a case from Badaun, UP. The agency concluded that two underage girls who were found on a tree in May 2014 had not been sexually abused and committed suicide. In 2015, a POCSO court rejected the CBI's final report and initiated a process.


In India, litigation involving sexual assault is invariably lengthy and often a humiliating experience for survivors and their families. While the law requires the trial to be completed in two months, the Supreme Court ruled in July last year that the trial was completed in only 4 percent of the 24,000 sexual crime cases filed between January and June 2019 Establishment of 1,023 Fast Track Special Courts nationwide (FTSCs) for the rapid elimination of rape cases under the Indian Penal Code and crimes under the POCSO Law. However, the records of the existing fast track courts are anything but encouraging. As of September 30, 2019, 701,478 cases were pending in 704 fast food courts across India. "The judiciary itself cannot be expected to use a wand to handle half-botched and manipulated investigations that arrive at your table," said former Supreme Court Justice A.K. Sikri.

A senior prosecutor who refused to be named claims that more than 70 percent of cases in fast food courts are the result of consensual sex that goes wrong. In 2013, a study commissioned by a newspaper examined 460 cases in Delhi that were brought to trial and found that over 40 percent of them had sex with consensuals. another 25 percent related to sex after the promise of marriage.

Often, sexual crime survivors abandon the legal struggle due to factors such as police and judicial insensitivity, lack of resources, and poor investigation. "We have to make our criminal justice system more efficient and free from corruption. The victims are disappointed with the delay in proceedings," said Seema Misra, a lawyer and women's rights activist in Delhi. "In one UP case, a victim went to court several times to record her testimony, but it was put on hold every time. Eventually, she was fed up and prone to pressure."

In high profile cases, bad investigations are often due to lack of will on the part of the investigative authorities – the Unnao case with Sengar is a typical example. In most cases, however, the probe suffers from a lack of police force, poor investigative training, and gender-sensitive people. Even when incidents of sexual crime increase, police performance declines. According to the NCRB, only 85 percent of sexual crime cases investigated in 2018 were filed against 96 percent in 2012. "The ability of a police officer to receive rape complaints is important, as this affects the willingness to be potentially compromised Survivor who works with law enforcement, "says Sikri.

Successive governments have recognized that women who are subjected to sexual harassment or violence find it difficult to contact the police or other authorities for help. One of the best ways to fix this problem is to recruit more women to the police. In a letter to the states in 2013, then Home Secretary R.K. Singh, now a union minister, suggested that each police station have at least three female sub-inspectors and ten female police officers. Between 2013 and 2019, the Union government sent advice to the states at least six times to increase the representation of women to 33 percent of the total strength of the force.

But little has changed on the ground. In 2013, women made up 5.3 percent of the country's total police force. In 2017 it was 7 percent. Aside from the advice, the center has not set an example in a state where it controls the police. The proportion of women in the Delhi police is only slightly above the national average at 8 percent.


In order to provide a credible alternative to assist victims, the Narendra Modi government proposed the appointment of last year Mahila Volunteer Police Officers (MPVs) in all states. MPVs are designed to act as a link between the police and women in need. The program is funded by the Nirbhaya Fund, which the UPA government set up in 2013 to implement nationwide initiatives to improve women's security. Government reports indicate that only 12 countries have made proposals to set up MPVs. Seven of them – Jharkhand, Karnataka, Madhya Pradesh, Mizoram, Nagaland, Tripura and Uttarakhand – did not spend a cent on the project.

As part of the Nirbhaya Fund, the Union government launched the One Stop Center Program (OSC) on April 1, 2015 to offer integrated services to women who are exposed to sexual violence. This includes medical help, police help, legal advice, court proceedings, psychosocial advice and emergency accommodation. According to the government, 595 OSCs are in use in the country. But four states – Bihar, Delhi, Karnataka and West Bengal – have not used the released funds to set up OSCs.

The Nirbhaya Fund also covers projects under the Safe City program to be carried out in eight cities. The projects include street lighting of crime-prone locations and their surveillance by CCTV and drones, the use of automated devices to read the license plate number through an integrated control room, the starting of outposts for women and police patrols to make public transport safer for women and operate special public toilets for women. However, progress has been very slow.

By November 2019, the center had allocated Rs 2,050 crore from the Nirbhaya Fund – roughly 63 percent of the total corpus of Rs 3,600 crore – to different states. Only 20 percent of it was used. Five states – Maharashtra, Manipur, Meghalaya, Sikkim and Tripura – and the territory of the Union of Daman and Diu have not spent a single rupee from the fund. As advocate Kapur says: "While we seek retaliation, we ignored the basics. Let us take care of the rights of the victims [of sexual offences]? Do we ensure your rehabilitation? Unfortunately not. "

The center has taken several initiatives to combat rape and other sexual offenses over the past seven years. In May 2018, the Home Office set up a department for women's security to draft guidelines and implement projects to protect women by states. This includes the increased use of IT in the areas of criminal justice, forensics and crime statistics.

In September 2018, the Home Office launched the National Sex Offenders Database (NDSO) to keep an eye on the list of sex offenders despite the move being contested. In February 2019, the government launched the India-wide emergency number 112 to provide assistance in emergencies. In the same month, the Home Office launched an analysis tool, the Investigation Tracking System for Sexual Offenses (ITSSO), to track the time-based investigation of cases. It is part of the crime and criminal tracking network and system that connects over 15,000 police stations across the country.

To improve the investigations, the Ministry has set up a modern DNA analysis unit in the Central Forensic Science Laboratory in Chandigarh. The installation / upgrade of DNA analysis units in forensic laboratories in 13 states has also been approved. Guidelines for collecting forensic evidence in cases of sexual assault and a standardized kit for collecting Sexual Assault Evidence Collection (SAECK) were provided. The Delhi Police Research and Development Office has distributed 3,120 such kits to the states. Over 6,023 employees were trained in the collection, handling and transportation of forensic evidence. Sardar Vallabhbhai Patel National Police Academy, based in Hyderabad, and the North Eastern Police Academy in Meghalaya regularly conduct police awareness courses.

However, there is a serious gap between the government's paper efforts and local implementation. For example, several countries continued to practice the two-finger test despite the availability of SAECK. In 2013, the Supreme Court had declared the two-finger test, in which doctors investigate the allegation of rape of victims of rape by inserting fingers into the vagina, as a violation of their privacy. In MP, where most cases of rape were registered (NCRB data for 2018), the practice continued in media reports that were not released until November 2019.

"We've heard of special equipment, but I don't think the police stations in villages and towns have access to them when big cities don't have them in police stations yet," said a police officer from the Burdwan district of West Bengal. Some states claim to make slow but steady progress in the scientific, sensitive, and rapid conduct of rape investigations. Bihar ADG (Headquarters) Jitendra Kumar told India Today the State Police have the standardized SAECK and the police have been trained to be gender specific. The state also shows some results – the number of rape cases has decreased from 1,475 in 2018 to 1,165 in 2019.

"We don't need new laws. Existing laws can function properly if the system allows it. The rape case in Delhi was negotiated under the older (before 2013) laws and convictions were issued," said Kotiswaran. The center and the states must concentrate on creating a robust and efficient criminal justice system. At a time of economic need, the government should also consider the 2018 World Bank report that violence against women costs countries up to 3.7 percent of their GDP – almost as much as India spends on education.

(- with Amitabh Srivastava and Romita Datta)