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Capital Punishment In Context of Rape: A study of “ Nirbhaya Case”
MS. SHALINI SHUKLA FACULTY OF LAW
Asst.Prof. Swami Vivekananda Subharti
University, Meerut
SUPERVISOR’S CERTIFICATE
I feel great pleasure in supervising the work of PAYAL RANA a student of LL.M ( 4th semester)
bearing Roll no. 150502760000019 and Enrollment number 1006100093, the outcome of
which is presented in the form of dissertation titled “ THE CAPITAL PUNISHMENT IN
CONTEXT OF RAPE : A STUDY OF NIRBHAYA CASE” in partial fulfillment of the
requirement for the award of degree of Master of Laws under my supervision. I an glad to notify
that she has put in hard and sincere efforts with keen interest to cultivate the said topic.
She has collected the relevant material from various original sources and assimilated them
intelligently. She also discussed the ratio of decided verdicts of the Supreme Court and High
Courts. She has reached and presented the topic in concise, systematic and well-arranged
manner. Throughout the course of the work she has made sincere efforts and succeeded to a great
extent in writing this dissertation in a lucid and comprehensive language. The study shall
definitely pave way for future research and development in the field of criminal law. My good
wishes are with her.
I wish her all success in life.
Date: SHALINI SHUKLA
Place:…………………
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DECLARATION
I, PAYAL RANA hereby declared that the work embodied in this research (dissertation in partial
fulfillment of the requirement for the award of the degree of Masters of Laws) on " THE
CAPITAL PUNISHMENT IN CONTEXT OF RAPE: A STUDY OF NIRBHAYA CASE"
is my own bonafide work carried out by me under the supervision of Miss. Shalini Shukla,
Asst. Prof. in Sardar Patel Subharti Institute of Law. The matter embodied in this dissertation
has not been submitted for the award of any other degree
I declare that I have faithfully acknowledged, given credit to and referred to the research workers
wherever their works have been cited in the text and the body of the dissertation. I further certify
that I have not willfully lifted up some other's work, paragraph, text, data, result etc. reported in
the journals, books, magazines, reports, dissertations, thesis etc. or available at web-sites and
included them in this dissertation and cited as my own work.
It is also declared that this dissertation work has not been submitted in part or in full earlier, to
any other university for the award of any degree or diploma. My indebtness to other works has
been duly acknowledged at the relevant places.
Date: PAYAL RANA
Place: ................. LL.M. 4th sem
Roll No. 150502670000019
Enrollment No. 1006100093
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ACKNOWLEDGEMENT
I thank the almighty God for giving me the opportunity to study and enabling me to reach to the
end of this journey. Writing this dissertation was a long journey which would not have been
possible without the help and support of numerous people who in one way or the other stood by
my side to bring this dissertation in its present form. It is not possible to give credit to each one
by name. I acknowledge each and every one who contributed in any way. However, there are a
number of contributors who deserve a special mention for their outstanding contribution.
I cannot express enough thanks to my advisor of this research project for her continued support
and encouragement: Ms. Shalini Shukla , my thesis advisor . I offer my sincere appreciation for
the learning opportunities provided by her throughout this writing process.
On the other hand the dissertation committee has played an integral part of shaping this
dissertation as well as pushing the researcher to expand her knowledge and appreciation of issues
that the world faces.
The researcher would like to deeply express her sincere thanks to Dr. Vaibhav Girl Bhartiya and
to all the working staff in the libraries of Faculty of Law, Swami Vivekananda Subharti
University, Meerut, UP, with whose co-operation the completion of this work was accomplished.
Last but not the least the researcher would like to thank her family and friends for their
continuous love and support without which it was not possible to fulfill this work. Finally, I
would like to thank you, the reader, for taking the time to read about my research on rape cases
which is not only endemic to India, but which affects virtually every country in the world. I hope
you learn as much about the Nirbhaya case and the issue of rape as I have during the research
process. I can only wish that one day, such a problem will be a matter of concern.
Payal Rana
Ll.M. 4th sem
Roll no. 150502670000019
En. No. 1006100093
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PREFACE
Rape is among the highest forms of crime experienced by women in all sectors of the society. In
recent years, there has been an alarming rise in ratio of rape in India.. Delhi bagged the dubious
record of being the only union territory where such crimes were reported. Rape is a serious crime
and increasingly gaining visibility as a major public health concern.
This research was influenced and inspired by the increased cases of rape in India, and gives a
special reference to the "Nirbhaya Case". Although assault and rape cases have made India
infamous for its high volume of crimes against women, the reaction to this particular incident
was much different from before.
The present study aimed to deeply analyze the Nirbhaya Case and to find out the solutions for
the prevention of rape and suggests the imposition of death penalty in cases of rape. Based on the
research, the researcher offered some suggestions, regarded as the way forward. These should be
the programs in rape prevention, risk reductions interventions, addressing negative stigmatization
towards women which might be socially or culturally engineered, empowering women and
through other ways which can effectively reduce rape and its negative consequences within the
context.
I hope that the present issue of my dissertation work would be extremely useful to planners,
policy makers, research workers and academicians. Suggestions for the improvements in the
research work will be highly appreciated.
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LIST OF ABBREVATION
AIDS - Acquired Immunodeficiency Syndrome

AIDWA - All India Democratic Women's Association
Art. - Article
BBC - British Broadcasting Corporation
CBI - Central Bureau of Investigation
CCTV - Closed- Circuit TV

CID - Criminal Investigation Department
Cr. P.C . - Code of Criminal Procedure
DCP - Deputy Commissioner of Police
FIR - First Information Report
Govt. - Government
GPS - Global Positioning System
HC - High Court
HIV - Human Immunodeficiency Virus
ICCP - International Covenant on Civil and Political Rights
IEA - Indian Evidence Act
IPC - Indian Penal Code
JJB - Juvenile Justice Board
JVC - Justice Verma Committee
LTT - Lokmanya Tilak Terminus
MP - Member of the Parliament
NCRB - National Crime Reports Bureau
NCW - National Commission for Women
NGOs - Non- Government Organizations

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PCR - Police Control Room
SC - Supreme Court
Sec - Section
Ss - Sub Section
SSP - Senior Superintendent of Police
STD - Sexual Transmitted Disease
TRP - Television Rating Point
TV - Television
UK - United Kingdom
UN - United Nation
UNICEF - United Nations International Children's Education Fund
UP - Uttar Pradesh
USA - United States of America
WCD - Women and Child Department
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LIST OF CASES
Ajmer Rape Case………………………………………………...………………………………69
Allauddin v. State of Bihar, AIR 1989 SC1456…………...………..……………………………33
Anjana Mishra Rape Case ……………………………………………………………………….69
Aruna Shanbaug Case, Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March,
2011…………………………………………………………………………………………55, 118
Attorney General v. Lachma Devi {1989 SCC [CRI] 413………………………………………30
Bachan Singh Case- Bachan Singh vs State of Punjab AIR 1980 SC 898…… ….23,25,28,32,35
Badaun Case……………………………………………………………………………………...65
Bahraich Rape Case……………………………………………………………………………...70
Balwant Singh v. State of Punjab, 1987 Cri.LJ 971 (S.C.)………………………………………36
Bhanwari Devi Rape Case, Sohan Lal and others vs. State of Rajasthan AIR 2002……….……60
Bhat Prabha Ruda, (1961) 2 G.L.R. 251………………………………..………………………..35
Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684……………………….…114
Bhupinder Singh v. Union Territory of Chandigarh(2008) 3 Cri.LJ 3546 (SC)…….………….116
Bodhisattawa Gautham v. Subhira Chakroborthy, 1996 AIR 922, 1996 SCC (1) 490………….48
Bulandshahr Rape Case 2016……………….………………………………………………….139
Chairman Railway Board v. Das, A.I.R. 2000 S.C. 988,……...…………………………………49
Deena and Ors. Vs. Union of IndiaAIR 1983 SC……….……………………………………….30
Dhananjoy Chatterjee vs State of West Bengal. 1994 (1) ALT Cri 388, ………..………………35
Ediga Anamma v State of Andhra Pradesh AIR 1973 S.C. 774………………………………...31
Esther Anuhya Rape Case 2016…………………………………………….………………….141
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Fateh Chand vs State of Haryana, (2009)15 SCC 543 …………………………………..…….115
Geeta Chopra Rape and Murder Case ………………………………………………………….68
Guddu vs State of Mp,(2007)14 SCC 454, 2006…………….…………………………………115
Harpal Singh AIR 1981 SC 361…………………………………...……………………………115
Imrana Rape Case ……………………………………………………………………………….70
Jagmohan Singh vs State of Uttar Pradesh1973 AIR 947, 1973 SCR (2) 541……………….25,28
Jalgaon Rape Case……….………………………………………………………………………68
Kaini Rajan vs. State Of Kerala 2013 (9) SCC 113…………………………………………....136
Kamduni Gang Rape and Murder case 2013………………………………………..………….137
Kandhamal Gang Rape Case 2015……………………………………………………………..139
Kehar Singh v. The Union of India, (AIR 1962 SC 955)………...……………………………..34
Kolkata gang Rape 2016………………………………………………………………………..140
Machhi Singh v. State of Punjab, (1983) 3 SCC 470…………...……………………………29,33
Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;………..…………………………..115
Mathura rape case Tukaram v. State of Maharashtra AIR 1979 SC 185……………56,72,114,118
Mithu v. State of Punjab (1980) 2 SCC 684…………………………………………………….32
Moti Bagh Rape Case 2016…………………………………………………………………….141
Moti Ram AIR 1954 Nag. 922…………………………………………….……………………..34
Mumbai Gang Rape 2013………………………………………………………………………137
Nirbhaya Rape case, Delhi Gang Rape, Damini Case, State Through Reference vs Ram Singh &
Ors. on 13 March, 2014…………………………………………………………………….79- 109
Nirmal Singh v. Slate of Haryana 1999Cr.LJ. 1836…………………………………………….27

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Om Prakash vs State of Haryana 1999 Cr.L.J. 2044……………………………………………27
Panchhi v. State of U.P AIR1998 SC 2726………………..……………………………………28
Parminder @ Ladka Pola vs. State Of Delhi ILC-2014-SC-CRL…………………………..…138
Pradeep Kumar Verma v. State of Bihar 2007 IV Cri.LJ 4333 (SC)…………………………..116
Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639…………………………………..118
Priyadarshini Mattoo Rape Case, Santosh Kumar Singh v. State, (2010) 9 SCC 747….……….61
Rafiq v. State 1981 AIR 559, 1981 SCR (1) 402…………………………………………..……44
Ragjuir Singh vs. State of Haryana, A.I.R., 1975, S.C. 677………………….…………………28
Rajendra Prasad Etc. v State Of Uttar Pradesh, 1979 AIR 916………………………..….24,25,32
Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;………..….115
Ranga Billa vs. Union of India, Supreme Court, 1982 AIR 774 1982 SCR…………….………26
Rani Ponda v. State of West Bengal 1984 Cr.L.J…………………… ……………………….120
Sakshi v. Union of India and OrsA.I.R. 2004SC 3566…………………………………...…73,121
Shankaria vs. State of Rajasthan, A.I.R., 1978, S.C.p. 1248……..………….…………………..27
Shashi Nayar v. Union of India (1992) SCC (CRI) 24………….……………………………….30
Sher Singh v. State of Punjab, A.I.R. 1983 SC 365………………………………………….….26
Shopian Rape and Murder Case……………..…………………………………………………..68
Smt Sudesh Jhaku v KCJ & Ors. 1998) Cr LJ 2428………………………………...………….116
Soumya Rape and Murder Case …………………………………………………………………68
State of Himachal Pradesh v. Mango Ram (2000) 7 SCC 224……..…………………………..120
State of M.P. vs Molai 1999 Cr.L.J. 2698………………………………………..……………...27
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State of Maharashtra v. Prakash AIR 1992 SC 1275………………………………………… 120
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393…………………………………………118
State of Uttar Pradesh v. Chottey Lal,2011) 2 SCC 550……………………………………….116
Suryanelli Rape Case ……………………………………………………………………………69
Tulshidas Kanolkar v. State of Goa (2003) 8 SCC 590………………………………………...28
Uttar Pradesh v Babulnath 1994) 6 SCC 29……………………………………………………115
Vachathi Case…………………...……………………………………………………………….70
Vishaka & Ors vs State of Rajasthan and Ors)AIR 1997 SC 3011……………...………………97
Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;……………………………………..115
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TABLE OF CONTENTS
I. SUPERVISOR'S CERTIFICATE ………………………………………………………………….. 1

II. DECLARATION ……………………………………………………………………………………... 2
III. ACKNOWLEDGMENT……………………………………………………………………………… 3
IV. PREFACE ……………………………………………………………………………………………. 4
V. LIST OF ABBREVIATION………………………………………………………………………... 5-6
VI. LIST OF CASES……………………………………………………………………………………7-10
1.0 CHAPTER 1- INTRODUCTION 14-19
1.1 Origin of Law relating to rape ……………………………………………………………………… 16
1.2 Social Context ………………………………………………………………………………………. 16
1.3 Rape and the Law ……………………………………………………………………………………. 16
1.4 Statement of Problem ……………………………………………………………………………… 17
1.5 Objectives of the Study ……………………………………………………………………………… 17
1.6 Hypothesis…………………………………………………………………………………………… 17
1.7 Scope and Limitations…………………………………………………………………………………18
1.8 Research Methodology ……………………………………………………………………………….18
1.9 Research Questions …………………………………………………………………………………..18
1.10 Chapterization Scheme ………………………………………………………………………… 18-19
2.0 CHAPTER 2. CAPITAL PUNISHMENT FOR RAPE: IS IT FEASIBLE 20-40
2.1 Meaning and Concept of Capital Punishment ……………………………………………………….. 21
2.2 History of Capital Punishment ………………………………………………………………………. 22
2.3 Evolution of the capital Punishment in India ……………………………………………………….. 23
2.4 Constitutionality of death sentence ………………………………………………………………….. 23
2.5 Supreme Court on Validity of Capital Punishment in India ………………………………………... 25
2.6 Doctrine of the rarest of rare ………………………………………………………………………... 25
2.7 Mode of the execution of death sentence……………………………………………………………...29
2.8 Law Commission Report on Death Penalty …………………………………………………………..31
2.9 Death Penalty In Rape : The Indian Scenario ……………………………………………………….34
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2.11 Death Penalty In Rape: The International scenario ………………………………………………..35
2.12 Arguments in favor of death Penalty for Rape…………………………………………………….. 38
2.13 Arguments in Against of death Penalty for Rape……………………………………………………40
3.0 CHAPTER 3. RAPE: A CONTEMPORARY OVERVIEW 44-77
3.1 Meaning of Rape ……………………………………………………………………………………45
3.2 Rape Theory…………………………………………………………………………………………. 46
3.3 Rape as an Institution of Patriarchy ………………………………………………………………… 47
3.4 Rape vs. Right to life ……………………………………………………………………………….. 48
3.5 Basis of Rape ………………………………………………………………………………………. 49
3.6 Causes of Increasing Rape Cases in India ……………………………………………………….. 50
3.7 Types of Rape ……………………………………………………………………………………… 52
3.8 Landmark Cases of Rape……………………………………………………………………………. 54
3.9 Justice Malimath Committee Report on Sexual Offences………………………………………...... 71
3.10 Law Commission's 172 Report on the Review of Rape Laws in 2000 ……………………………..72
4.0 CHAPTER 4. THE NIRBHAYA CASE: A FIGHT FOR JUSTICE 78-109
4.1 Facts of the Case …………………………………………………………………………………… 80
4.2 Four Year History of the Case ………………………………………………………………………..82
4.3 The Juvenile Rapist of Nirbhaya ……………………………………………………………………. 92
4.4 Details of the accused: How to try the juvenile?.................................................................................. 92
4.5 Was He Really Reformed?................................................................................................................. 96
4.6 Recommendations of Justice Verma Committee Report on CriminaI Law Amendment Act, 2013 …96
4.7 Role of Mainstream Media and Social Media……………………………………………………… 100
4.8 Role of Government ………………………………………………………………………………. 102
4.9 Case Verdict & Present Status ………………………………………………………………………105
4.10 Public Opinion on the Case ……………………………………………………………………… 106
4.11 India's Daughter: A Documentary on Nirbhaya Case …………………………………………… 107
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5.0 CHAPTER 5.THE NIRBHAYA CASE & IT'S AFTERMATH 110-129
5.1 Legal Impact …………………………………………………………………………………….. 112
 Improvement In Legal System ………………………………………………………………… 112

 The Criminal Law Amendment Act of 2013…………………………………………………... 113
 Comparison and Critical Analysis of the Rape Laws Before and After the Criminal Law
Amendment (2013) …………………………………………………………………………….113
 Critical Comparison of the Two Legislations …………………………………………………. 118
5.2 Social Impact …………………………………………………………………………………....... 121
 Establishment of Nirbhaya Trust …………………………………………………………….....123
5.3 Government Initiatives to Protect Women ……………………………………………………….123
 Nirbhaya Fund ………………………………………………………………………………... 123

 Safety Measures In Public Transport for Women …………………………………………... 124
 New Measures to Protect Women ……………………………………………………………..125
6.0 CHAPTER 6. CHALLENGES AFTER THE CRIMINAL LAW AMENDMENT ACT , 2013
(130-143)
6.1 What hasn't changed?....................................................................................................................... 131
6.2 Will things change ………………………………………………………………………………... 135
6.3 The Impact of Being a Juvenile in India ……………………………………………………………136
6.4 Rape Cases After the Incident of Nirbhaya's Rape ……………………………………..………..,,136
7.0 CHAPTER 7. CONCLUSION AND SUGGESTIONS 144-151
7.1 Suggestions …………………………………………………………………………………………148
BIBLIOGRAPHY……………………………………………………………………………….. 152 - 162
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CHAPTER - 1
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INTRODUCTION
In India, these days, rape cases are found in daily news. We can see many cases like these in
trains in Mumbai in front of everyone and no one coming for help instead. National capital Delhi
has become the most unsafe place for girls where one rape happens almost every day. In other
parts of the country too, this cases are very common like in UP and Bihar and in most of the
cases, the accused get bailed because of having good social power. Our police department, due to
their weakness and corrupted minds, fail to rescue these girls. Putting to rest the controversy over
whether a person charged with rape and murdering his victim should be sentenced to the extreme
penalty of death; the Supreme Court has ruled that in such a rarest of rare case an accused can’t
be given the capital sentence but life term till the end of his life. This ruling has given a new
thrust to the raging debate on compulsorily giving the extreme sentence of death to a rapist. But
conscious of the consequences of such legislation that could lead to serious ramifications, it is
argued that the victim could lose the life too after having suffered the worst kind of brutality.
Rape is committed by a person, he has intercourse with a women against her will or without her
consent .The frequency of crime against women ,the inadequacy of the law of rape manifested in
number of judgments and the strong protests by social activists ,jurist and judges and scholarship
general and women organization in particular, against the failure of law to protect victim of rape.
Death for rapist has become a familiar theme in parliament whenever the matter comes up for
discussion in the week of large –scale rapes taking place in the country .The existing penal
provision of rape under sec. 376, IPC would reveal that punishment may extent up to life
imprisonment with section minimum imprisonment for 7 year and sub section (2) Imprisonment
for 10years with custodial rape and rape with a pregnant women. Since the legislature has
already taken adequate measures, there is hardly any justification for death punishment the
debate on capital punishment has been running over the past so many decades, but yet nothing
concrete is coming up. Many may be satisfied with the present legislation on giving of capital
punishment but to many of us it’s still not serving the purpose that it is deemed to serve. Is it
actually working as a deterrent to crime? Which as far as our understanding goes is increasing
day by day. History is evidence to the fact that capital punishment has never acted and would
never act as deterrence to crime. In a land Mark Judgment Dhannajay was given capital
punishment for raping and then killing a minor girl. His act as such was brutal calling for severe
action against him, but it seems that the ends of justice have not actually been met out. So many
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cases of murder go not unnoticed but without any punishment to the doer only because he has
money to meet out whatever expenditure might come in defending his case. Be it by influencing
or so to say compensating the families of those killed or hiring an efficient lawyer to prove the
case in their favour. Talk about so many politicians engrossed from top to bottom in so many
corrupt activities known to everyone still go out of the Court smiling.
Origin of Law relating to Rape
It is said that the present day’s law relating to rape has its origin in 1736 in Britain, when Sir
Mathew Hale in his Hisoria Placitorium Coronae, or in other words, History of the Pleas of the
Crown, presented common law rape doctrines which are immediately noticed to be hostile to the
interests of women as one of the requirements was to inform the jury during the trail that the rape
charges were easy to bring but difficult to defend.
Social Context
Rape is a gender –specific offence which can only be committed by men of all rapes. The victims
may be women, other men or children. Around 90% of rapes are by people known to the victim.
Over 90% of all rapes are against women. For these reasons, the victim or complainant of rape
will be referred to here as female. This is not to under –estimate the prevalence or trauma male
rape.
Rape and Law
The alarming frequency of crime against women, the inadequacy of the law of rape manifested in
a number of judgements and the strong protests by social activist, jurists , judges and scholars in
general and women organisation in particular, against the failure of law to protect victims of rape
ultimately led the Parliament in 1983 to extensively amend the law of rape vide Criminal
(Amendment Act, 43 of 1983) so as to make the law more realistic. By the Amendment Act, the
word “Sexual Offence” was substituted in place of “rape” .Section 375 and 376, IPC were
extensively amended and ss 375,376 were incorporated for punishing those who molest a woman
under their custody or rape. Sexual intercourse with wife under a decree of judicial separation
has been also made punishable
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Statement of the Problem
Now a days in India Rape is become the most heinous crime in the country. Due to this reason
even the Indian Judiciary in great chaos. Some of the famous jurists and the social organisation
working for the benefit of women have a view that to make the crime less active in the country
the Judiciary must make the amendment in the punishment of rape and make capital punishment
in the cases of rape. But in the mean while Judiciary have their own reasoning which state that if
they make the capital punishment is the punishment in the cases of rape. Sometimes it will take
the undue advantage of the other party. The problem is that how to decide the rarest of rarest in
certain cases. Now researcher would analyze the all relevant aspect related to making capitals
punishment in cases of rape.
Objectives of the study
1. To know the relevancy of death penalty in case of rape.
2. To examine the reasoning of rarest of rare in case of death penalty provided in rape.
3. To enquire about the views of different jurist and social organisation regarding death
penalty in Rape cases.
4. Identify the countries that have enacted minimum sentences and sentencing guidelines for
sexual offences such as rape, defilement, and sexual assault; and
5. Consider the different approaches adopted by various sentencing schemes.
6. To analyze the Nirbhaya Case
Hypothesis
“Death penalty is an essence in the cases of Rape in India”.
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Scope and Limitation
In this research project the Researcher cover all the aspects related with the need of death penalty
in Rape cases in India. So researcher would cover all the area which states the need of the
punishment in Indian Cases. With the help of different case laws the researcher would find out
the need of death penalty in Indian Cases.
Research Methodology
Doctrinal methodology is adopted for this research. It will involve secondary data such as
various Articles, Books and Journal etc. The research is limited to legislation and published
articles that was accessible online or obtained from personal sources.
Ideally, a comprehensive research would include a review of reported case law on rape
sentencing, as well as identification and analysis of any judicial instructions, policies, and
sentencing guidelines put in place since the introduction of sentencing reforms.
The inductive research method is followed here in order to infer theoretical concepts and patterns
from the observed data. I expect that while the initial impact of the Nirbhaya rape case was
significant for legal advancement, there has not been a significant social change in India in terms
of how violence against women is viewed.
Research Questions
(1) Whether death penalty is essential in the case of rape in Indian judiciary?
(2) What is the approach of Indian society on the issue of death penalty as the punishment in rape
case?
CHAPTERIZATION SCHEME
CHAPTER 1. INTRODUCTION: Under this chapter the law relating to the origin of rape and
the social context of rape will be discussed. It also entails various aspects such as the statement
of problem, hypothesis, research questions, objective of the study, research methodology and the
chapterization Scheme of the dissertation.
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CHAPTER 2. CAPITAL PUNISHMENT FOR RAPE: IS IT FEASIBLE- Under the second

chapter, the researcher will discuss about the meaning and concept, history and evolution of the
capital Punishment and the constitutionality of death sentence, the doctrine of the rarest of rare
and the mode of the execution of death sentence in India. The chapter will also discuss the law
commission report on death penalty, the Indian and International scenario of death penalty in
rape. The researcher will also give some arguments in favor and against of death penalty in rape.
CHAPTER 3. RAPE: A CONTEMPORARY OVERVIEW- Under the third chapter the

researcher will give an overview of the problem of rape in which the researcher will discuss the
meaning, concept, and theory of rape and the researcher will discuss what is the relation between
rape and right to life and what are the causes and types of rape. The chapter will also entails
various landmark rape cases and the Justice Malimath Committee and the law commission report
on the sexual offences.
CHAPTER 4. THE NIRBHAYA CASE: A FIGHT FOR JUSTICE- In the fourth chapter the
researcher will deeply analyze the Nirbhaya rape Case and will discuss how the media and
general public has played an important role for providing Justice to the Nirbhaya. Further, the
chapter will also discuss the Justice Verma Committee Report and a documentary film on the
Delhi Gang Rape named " India's Daughter".
CHAPTER 5.THE NIRBHAYA CASE & IT'S AFTERMATH- In the Fifth chapter the
researcher will discuss about the impact or the changes made in the Indian legal System after the
incident of Nirbhaya's rape. Further, the researcher will also discuss the social changes and what
steps are taken by government to protect the women
CHAPTER 6. CHALLENGES AFTER THE CRIMINAL LAW AMENDMENT ACT ,

2013- Under this chapter the researcher will discuss about the challenges which are still
prevailing in India even after the enactment of Criminal Law Amendment Act of 2013. Further,
the researcher will also discuss some recent rape cases.
CHAPTER 7. CONCLUSION AND SUGGESTIONS- The last chapter deals with the
conclusion and suggestions, in which the dissertation would be concluded after considering the
various aspects of the issue. Towards the end the researcher shall strive to provide some
suggestions which can help to improve the situation.
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CHAPTER- 2
20
CAPITAL PUNISHMENT FOR RAPE: IS IT FEASIBLE
"There should be exemplary punishment in view of the unparalleled brutality with which the
victim was gang raped and murdered, as the case falls under the rarest of rare category. All be
given death."
- Additional Sessions Judge Yogesh Khanna in the infamous Delhi gang-rape case1
On the fateful night of December 16, 2012, they showed the young woman no mercy, repeatedly
raping her and brutally pulling out her intestines with an iron rod. While handing down the
maximum punishment to the four convicts on September 10, 2013 the Court observed, "when
crime against women is rising on day-to-day basis, so, at this point in time court cannot keep its
eye shut." Even though the horrific events of December 16 evoked widespread protest and
candle-light vigils, yet the wave of rapes still rage across the nation. The spring and summer of
2013 were marred by barbaric events such as the rape of five year old girls in Delhi and
Gurgaon, the gruesome rape and murder of 20 year old college girl in Kolkata, and, most
recently, the gang rape of a photo journalist in Mumbai as well as countless other incidents. 2
As per the report by National Crime Records Bureau, “Crime in India 2012” 3 , with 24,915
victims of rape, the year 2012 saw an increase of 3.0% in the number of rape cases over 2011.
Alarmingly, offenders were known to the victims in as many as 24,470 (98.2%) cases. These
figures not only present the violence against women, rather they symbolize the pitiable condition
of the State machinery in its inability to protect its own citizens, its own women. The prevailing
emotion at all branches of government and the masses at large is the demand for withdrawal of
the protective arm of society in such heinous cases, that is award capital punishment.
1
PTI, Delhi gang-rape case: Death sentence for all four convicts, TIMES OF INDIA, Sep 13, 2013, available at
http://articles.timesofindia.indiatimes.com/2013-09-13/india/42039872_1_advocate-v-k-anand-four-convicts-delhi-
high- court.
2
Aparna Viswanathan, A Task Only Half Finished, THE HINDU, at 10, Aug 28, 2013.
3
Ministry Of Home Affairs, National Crime Records Bureau, Crime in India 2012, Chapter 5, available at
http://ncrb.gov.in/
21
Meaning and Concept of Capital Punishment
Capital punishment, also called death penalty, execution of an offender sentenced to death after
conviction by a court of law for a criminal offense. Capital punishment should be distinguished
from extrajudicial executions carried out without due process of law. The term death penalty is
sometimes used interchangeably with capital punishment, though imposition of the penalty is
not always followed by execution (even when it is upheld on appeal), because of the possibility
of commutation to life imprisonment4 . The term "Capital Punishment" stands for most severe
form of punishment. It is the punishment which is to be awarded for the most heinous, grievous
and detestable crimes against humanity. While the definition and extent of such crimes vary
from country to country, state to state, age to age, the implication of capital punishment has
always been the death sentence. By common usage in jurisprudence, criminology and penology,
capital sentence means a sentence of death.5
History of Capital Punishment
Capital punishment is a method of retributive punishment as old as civilization itself. It is a

lawful infliction of death as a punishment and since ancient times, it has been used for a wide
variety of offences. Both the Greeks and Romans invoked the death penalty for a wide variety of
offences.6
Socrates and Jesus were perhaps the most famous people ever condemned for a capital crime in
the ancient period. Hammurabi’s code, a code of laws developed by king of one of the first
empire, dates back from the third or second millennium before Christ. This code claims that
retribution, an eye for an eye and a life for a life, is justice. In Anglo American law the death
penalty has been a customary response to certain kinds of offences.7
4 http://www.britannica.com/topic/capital-punishment
5 Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
6
Monica K. Miller and R. David Hayward, Religious Characteristics and the Death Penalty,
http://www.jstor.org/stable/25144611 (Last Accessed: 12/03/2017, 05:27)
7
Dr. A. Krishna Kumari, Capital Punishment: The Never Ending Debate ,
http://www.richard.clark32btinternet.co.uk/thoughts.html
22
The Bible prescribes death for murder and many other crimes including kidnapping and
witchcraft. By 1500 in England, only major felonies carried the death penalty-treason, murder,
larceny, rape and arson. By 1700, however, parliament had enacted many new capital offences
and hundreds of persons were being put to death each year.8
Evolution of Capital Punishment In India
At independence in 1947, India retained the 1861 Penal Code which provided for the death
penalty for murder. During the drafting of the Indian Constitution between 1947 and 1949,
several members of the Constituent Assembly expressed the ideal of abolishing the death
penalty, but no such provision was incorporated in the Constitution. Private members’ bills to
abolish the death penalty were introduced in both houses of parliament over the next two
decades, but none of them was adopted. It has been estimated that 3000 to 4000 executions
occurred between 1950 and 1980. Information on the numbers of persons sentenced to death and
executed from 1980 to the mid- 1990s is harder to measure. It is estimated that two or three
persons were hanged per year.9 In the Bachhan Singh10judgment of 1980, the Supreme Court
ruled that the death penalty should be used only in the “rarest of rare” cases, but what defines
rarest of the rare was not clear.
Constitutionality of the Death Sentence
Indian constitution is an amalgam of many constitutions, i.e., the constitution of America, Britain
and Japan. It should not surprise anyone, therefore, that the main provisions of the constitution of
India guaranteeing the right to life has been lifted from the American and the Japanese
constitutions. 11 It may be added here that what we have borrowed is the form or style of
8
http://ijlljs.in/capital-punishment-in-india-the-unending-conundrum/
9
Walia, Arunjeev Singh,Can society escape the noose–? : the death penalty in India : cases, materials, and
opinion ,201 (Human Rights Law Network, 1st edition, 2005)
10
Bachan Singh v. State Of Punjab , AIR 1980 SC 898
11
Death Sentence: A Critical
Analysis, http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
23
expression and not the right itself. The right to life is not the something that constitutions create
or even confer.
The constitution only recognizes this inalienable and indispensable right. The constitutional
provision is therefore, only evidentiary value. Allan Gledhill has given an interesting statement
regarding it, which is:
“In some of the older countries the right to life and liberty receives more effective protection
from constitutiona1 conventions than they do in countries with constitutions elaborating the
right. The degree of personal liberty enjoyed by the average Indian is not remarkably less than
that enjoyed by a citizen of any other parliamentary democracy.”12
With the on-going debate as to whether the death penalty should be abolished or not, the
question of constitutionality of this sentence repeatedly comes into the spotlight. The basic
question that comes to the mind of many peoples is how something can be so brutal, barbaric,
uncivilised, inhumane, and cruel or degrading, be constitutional. Justice Krishna Iyer observed
in Rajendra Prasad’s case13:
“it is fair to mention that humanistic imperatives of Indian Constitution, as paramount to
punitive strategy of Penal Code, have hardly been explored by courts in this field of ‘life or
death’ at the hands of the law. The main focus of our judgments is on this poignant gap in
‘human rights jurisprudence’ within the limits of Penal Code, impregnated by the Constitution.
To put it pithily, a world over voicing the worth of the human person, a cultural legacy charged
with compassion an interpretative liberation from colonial callousness to life and liberty, a
concern for social justice as setting the sights of individual justice, interact with the inherited
text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19, and
21.” Yet, Article 21 of the Constitution states, “No person shall be deprived of his life or
personal liberty except according to procedure established by law”.14
12
Allan Gledhill, “The life and liberty in first ten years of republican India”, 2. J.I.L.I. 241 at 266 (1959-60).
13
Rajendra Prasad Etc. v State Of Uttar Pradesh, 1979 AIR 916
14
Article. 21 of Indian constitution
24
Supreme Court on Validity of Capital Punishment in India
Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all
persons. It adds no person shall be deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life. While the
central government has consistently maintained it would keep the death penalty in the statute
books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has
upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan
Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh
(1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the
constitutional validity of the death penalty. It said that if capital punishment is provided in the
law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a
convict. This will, however, only be in the “rarest of rare” cases, and the courts should render
“special reasons” while sending a person to the gallows.15
The ‘Rarest Of The Rare’ Doctrine
There is no statutory definition of “rarest of rare”. It depends upon facts and circumstances of a
particular case, brutality of the crime, conduct of the offender, previous history of his
involvement in crime, chances of reforming and integrating him into the society etc.
The principles as to what would constitute the “rarest of rare” has been laid down by the top
Court in the landmark judgment in Bachchan Singh vs State of Punjab (1980). Supreme Court
formulated certain broad illustrative guidelines and said it should be given only when the option
of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left
completely upon the court’s discretion to reach this conclusion. However, the apex court also
laid down the principle of weighing, aggravating and mitigating circumstances. A balance-sheet
15
Indian Express, New Delhi, dated 27.5.2015
25
of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain

whether justice will not be done if any punishment less than the death sentence is awarded. Two
prime questions, the top court held, may be asked and answered. First, is there something
uncommon about the crime which renders the sentence of imprisonment for life inadequate and
calls for a death sentence? Second, are there circumstances of the crime such that there is no
alternative but to impose the death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offenders?16
The generally applied test while sentencing a convict to death is whether the survival of an
orderly society demands extinction of life of the person who has committed the offence and
whether failure to impose death sentence on him would bring to naught the sentence of death
provided under Section 302 of IPC.
Pre-planned, brutal, cold-blooded and sordid nature of a crime, without giving any chance to the
victim, are generally taken into account to decide whether a particular case falls within the
parameters of “rarest of rare”.17
1973 to 1980, the legislative dictate has changed from death sentence being the norm to
becoming an exception, and necessarily to be accompanied by reasons. Bachan Singh vs. State
of Punjab,18 was a landmark in the escalating debate on the question of the compatibility of the
death sentence with Art. 21 of the Constitution. The Supreme Court while holding the validity of
the death penalty expressed the opinion that a real and abiding concern for the dignity of human
life postulates resistance for taking a life through law’s instrumentality. 19 That ought not to be
done save in the rarest of rare cases, when the alternative option is unquestionably foreclosed. 20
However, the Court declined to formulate any aggravating or mitigating factors as it would fetter
judicial discretion, but held that a murder “diabolically conceived and cruelly executed” may
16
Indian Express, New Delhi, dated 27.5.2015
17http://m.hindustantimes.com/india/rarest-of-rare-cases-are-not-so-rare-in-india-now/story
JxnTLyJ4tPlDBnHhatCcIL.html
18
AIR 1980 SC 898
19
Ranga Billa vs. Union of India, Supreme Court, 1982.
20
Sher Singh v. State of Punjab, A.I.R. 1983 SC 365.
26
attract extreme penalty.21 It is not possible, the court opined, to feed numerous imponderable
circumstances in an imperfect and undulating society. But what are those rarest of rare occasions
is the dilemma.22 What appears as brutal and gruesome, to one judge may not appear to be so to
another. For example, in one case the murder of wife and two children with the motive of leading
life with the paramour could not convince Krishna Iyer, J. for death penalty, while Sen, J.
wondered what else could be a fit case for death penalty than the one at hand.23 It is submitted
that if the difference in perception is so glaring among two judges of the highest court in the
country what is relative position among very large number of session’s judges in the country.
Significance And Extent
The doctrine “rarest of the rare cases” is based on Gandhian theory, i.e., “hate the crime not the
criminal”. And thus, from this quotation, we can interpret the significance and extent of Death
Penalty. And if we go through the deep study of it, we find that the court wants to say that the
death penalty should be awarded rarely and only in such cases which are heinous, affecting the
humanity and are brutal.24
The problem of Death Penalty is not very acute in respect of death sentences awarded by
criminal courts in cases of general course of nature because death penalty is being awarded in
very few cases of murder and in most of the cases of murder the alternative penalty of life
imprisonment is awarded.
There is also one other characteristic of death penalty that is revealed by a study of the decided
cases and it is that death penalty has a certain class complexion or class bias in as much it is
largely the poor and the down trodden who are the victims of this extreme penalty. We would
hardly find a rich person going to the gallows whoever has money to hire the services of great
talents, has a reasonable chance of escaping the gallows though he has really committed a
murder. It is only the poor, the resource less people who have nobody to support them, who
21
Shankaria vs. State of Rajasthan, A.I.R., 1978, S.C.p. 1248
22
Nirmal Singh v. Slate of Haryana 1999Cr.LJ. 1836.
23
Om Prakash vs State of Haryana 1999 Cr.L.J. 2044
24
State of M.P. vs Molai 1999 Cr.L.J. 2698.
27
usually go to the gallows. The death penalty in its operation is declaratory. Capital punishment
Death penalty as pointed out by warden Duffly is a privilege of the poor.25
Keeping the above points in the view the Apex Court propounded the doctrine of “rarest of rare”.
Judicial Discretion And The Circumstances Of The Accused
The decision in Jagmohan Singh v. State Of U.P 26 involved a failed challenge to the
constitutionality of the death penalty. Its importance lies in the fact that it highlighted the need
for noting ‘special reason’ when imposing death sentences. Bachan Singh v. State of Punjab,
27which followed, was landmark decision, which despite affirming the constitutionality of the
death penalty diluted the scope of its imposition substantially by introducing the test of ‘rarest of
the rare case’. It was held that:
“….for persons convicted of murder, life imprisonment is a rule and death sentence is an
exception. A real and abiding concern for dignity of human life postulates resistance to taking
a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases
when alternative option is unquestionably foreclosed.”
The present position regarding Capital Punishment, as one might suppose of any system of law
with pretensions of being considered civilised, is to use it sparingly as possible- i.e. in ‘Rarest Of
Rare’ cases and this is the system as it stands in India. To have it in the statute book, but to use it
as rarely, is the compromise that the Courts, and we as a nation, adopt. In a relatively recent
case Panchhi v. State of U.P28, the Court observed: “Brutality of the manner in which a murder
was perpetrated may be a ground but not the sole criterion for judging whether the case is one of
the ‘rarest of rare’ cases.”
25
Ragjuir Singh vs. State of Haryana, A.I.R., 1975, S.C. 677.
26
AIR 1973 SC 947
27
AIR 1980 SC 898
28
AIR1998 SC 2726
28
The death sentence is not a rule but an exception. Mr M. Hidayatullah, the former Chief Justice
of the Supreme Court, observed that the ‘doctrine of the Rarest of Rare’ evolved in Indian
Jurisprudence for use specifically with regard to the death sentence is capable of discounting the
possible errors and abuse of the sanction. In Machhi Singh v. State of Punjab29, the Apex Court
laid down three conditions for imposition of the death sentence. These were:
 Where it is a ‘Rarest of Rare’ case?

 When there is something uncommon about the crime that renders ‘Life Imprisonment’ as
an inadequate sentence?
 Whether the circumstances of the crime are such that there is seen no alternative but to
impose death sentence even after Maximum weightage is given to any mitigating factor?
It is obligatory for the court to give special reasons for awarding the extreme punishment of the
death sentence. 30 Also, clear provisions have been laid down by the Supreme Court that
authorize ‘a mandatory death sentence’ for any offence as unconstitutional.
Mode of Execution of Death Penalty
Hanging is the mode of executing the death sentence in India.
Hanging: The Code of Criminal Procedure,1898 called for the method of execution to be
hanging. The same method was adopted in the Code of Criminal Procedure, 1973. Section
354(5) of Cr.P.C. 1973 states:
“When any person is sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead.”
29
(1983) 3 SCC 470
30
Code of Criminal Procedure, sec.353(3)
29
In Deena and Ors. Vs. Union of India31, the petitioner challenged the constitutionality of Sec.
354(5). Cr.P.C. on the ground that hanging a convict is a cruel method of executing the death
sentence, and is violative of Art. 21 of the Constitution. In deciding the method the Supreme
Court examined other means of execution such as electrocution, lethal gas, lethal injection and
shooting and concluded that none of these methods had a ‘distinct advantage’ over hanging.
It further examined if hanging, when considered in isolation as a mode of executing the death
sentence, offended Art. 21. The court referred to scientific and legal opinion as per which
hanging by rope is not a cruel mode of executing the death sentence. The Apex Court opined that
if a prisoner is sentenced to death, he cannot be subjected to humiliation, torture or degradation
before the execution of that sentence, not even as necessary steps in the execution of that
sentence since that would amount to inflicting a punishment on the prisoner which does not have
the authority of law. Accordingly the court held that the method prescribed by sec. 354(5)
Cr.P.C for executing the death sentence did not violate the provision contained in Art. 21 of the
Constitution.32
This issue was once again raised in Shashi Nayar case33the court held that since the issue had
already been considered in Deena, there was no good reason to take a different view.
Another issue which deserves attention is public hanging as a mode of execution. The issue of
public hanging came to the Supreme Court through a writ petition Attorney General v. Lachma
Devi34 in this petition the order of Rajasthan High Court regarding the execution of the petitioner
by public hanging under the relevant rules of Jail manual. The S.C. held that public hanging even
if permitted under the rules would violate Article 21 of the Constitution.
31
AIR 1983 SC
32
http://www.deathpenaltyindia.com/executions/
33
(1992) SCC (CRI) 24
34
{1989 SCC [CRI] 413}
30
Law Commission Report on Death Penalty
A discussion on death penalty cannot be complete without taking into consideration the
36thReport35of the Law Commission of India, which was submitted by the Law Commission in
1967.
The Report stated that the issue of abolition or retention of capital punishment should be decided
after balancing the arguments given in favor and in against of death penalty. A single factor
cannot decide the question of abolition or retention of death penalty in the country. The Report
also vocally stated that the question of protecting the society must be given prime consideration
while deciding the issue.
The Commission did consider the strong arguments given for abolition of capital punishment.
They also considered the concept of irrevocability attached with the punishment of a death
penalty. Nor did they ignore the fact that capital punishment was very severe, and a modern
approach was required to deal with criminals. But considering the state of the nation, the
Commission stated that, keeping in mind the way of upbringing of the citizen, the disparity level
in educational and moral levels of the people, the vastness of the area, the diversity of the nation
and the utmost need to preserve law and order, India cannot risk abolishing the capital
punishment yet.
In the judicial pronouncement of Ediga Anamma v State of Andhra Pradesh36Justice Krishna

Iyer commuted the death sentence of the accused to life imprisonment considering factors like
gender, age and socio-economic background of the accused. In this case, the Court laid out that
apart from looking into the circumstances of the crime, the Court should also look into the
condition of the accused. This case was followed by some important developments. Section 354
(3) was added to the Code of Criminal Procedure, 1973 which stated that in cases where capital
punishment was being awarded, the Court has to give special reasons for it. This made life
imprisonment a rule, and death penalty an exception, which was the other way round earlier.
35
http://lawcommissionofindia.nic.in/reports/report262.pdf
36
EdigaAnamma v. State of Andhra Pradesh, AIR 1973 S.C. 774
31
In 1979, India also became a signatory to the International Covenant on Civil and Political rights
(ICCPR).37 In the case of Rajendra Prasad v State of U.P38the Apex Court, however, stated that
the question whether capital punishment should be abolished or retained was a question for the
Legislature and not for the Courts to decide.
The case of Bachchan Singh v State of Punjab again brought up the question of the validity of
capital punishment and in this case, the doctrine of “rarest of the rare” was formulated. The five
Judge Bench stated that the taking of human life shouldn’t be encouraged even in the form of
punishment except in “rarest of the rare” cases where no alternative method can be used and is
foreclosed.
When the validity of capital punishment was questioned, the bench (majority decision) opined
that capital punishment did not violate either Article 19 or Article 21 of the Constitution. They
also pointed out to the fact that the makers of the Constitution were fully aware that the capital
punishment may be awarded in some cases, and it was proved by the existence of the provision
of appeal and provision of pardoning powers of the President and the Governor. It was also laid
down that mitigating, and aggravating factors should be considered while deciding the matter.
In the judicial pronouncement of Mithu v. State of Punjab,39mandatory death sentence, under

Section 30340 of IPC was declared unconstitutional and deleted from the IPC. This section was
based on the logic that any criminal who has been convicted for life and has committed a murder
while in custody is beyond reformation and do not deserve to live.
37
Article 6(2) of the ICCPR says: “In countries which have not abolished the death penalty, sentence of death may
be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and
Punishment of the Crime of Genocide.”
Sub- section 5 of the same Article says that no sentence of death shall be imposed on anyone under the age of 18
years and none can be carried out on pregnant women.
38
1979 AIR 916
39
(1980) 2 SCC 684
40
https://indiankanoon.org/doc/793437/
32
The case of Machchi Singh v State of Punjab41elaborated the doctrine of “rarest of rare.” The
Court gave guidelines regarding the things to be considered when deciding on the issue that
whether the case falls under the category of “rarest of rare” or not.
The following are-
1. Manner of Commission of the Crime: The Court stated that if the crime were
committed in extremely brutal and diabolic manners so that it arouses the intense
indignation of the society, it’d fall under the rarest of the rare case. Some instances
were given like when the house of the victim is set to flame with the objective to burn
him alive, or the victim is subjected to inhuman cruelty and torture, or when the body
of the victim is chopped and mutilated, it’ll be considered as a rarest of rare case.
2. Motive for Commission of the Crime: When the crime is committed in furtherance
to betray the nation, or assassins are hired to kill the victim, or any deliberate design is
made to kill the victim in a cold-blooded manner, it’ll also fall under the said category
of rarest of the rare.
3. Magnitude of the Crime: When the crime is humongous in proportion, for example,
killing all the members of the family or a locality is done.
4. Socially Abhorrent Nature of Crime: When the crime is such that it is socially
abhorred, such as killing a person belonging to the backward classes of the
community, or burning of a bride in case dowry wishes are not met, or murdering a
woman to remarry again.
5. Victim of the Crime: If the victim of the crime is a small child, who couldn’t have
provided any reason to the accused to commit the crime, or the crime is committed
against a helpless woman, or an old person, and if the victim was mentally challenged,
or the victim was a public figure who was loved by the society, the crime will fall
under rarest of the rare case.
In the case of Allauddin v State of Bihar,42 The Court stated that in case the Court was unable to
give a special reason for awarding the capital punishment, the Court should go for a lower
41
(1983) 3 SCC 470
42
Allauddin v. State of Bihar, AIR 1989 SC1456
33
sentence. In the case of Kehar Singh v Union of India,43Assassins of the then Prime Minister,
Indira Gandhi, were sentenced to death. Kehar Singh was one of the conspirators who took part
in the planning of the murder but did not commit it. The Court stated that even this fell in the
rarest of rare category.
In the year 2012, the judicial system had to suffer two major embarrassments.
The first instance was when fourteen retired judges asked for thirteen cases of capital punishment
to be commuted admitting that the capital punishment was awarded out of ignorance or error in
these cases. The second instance was where, then the former President Pratibha Patil commuted
the death penalty of a convict to life imprisonment, and it was later known that he had already
died five years previously.
After these incidents, the protest against awarding of capital punishment gained more
momentum. In 2012, Ajmal Amir Kasab was executed by the State for his involvement in the
Mumbai Terror Attack. Then in 2013, Mohd. Afzal, the mastermind of the 2001 Parliament
Attack was also executed. The verdict of the Nirbhaya Rape case was also given in 2013 where
the accused were awarded death sentence; this decision also reignited the debate regarding the
death penalty.
Death Penalty in Rape: The Indian Scenario
The roots of capital punishment lie in the theories of deterrence and retribution based on the idea
that guilty people deserve to be punished in proportion to the severity of their crime. This
argument states that real justice requires people to suffer for their wrongdoing, and to suffer in a
way appropriate for the crime. India is one of the 78 retentionist countries (118 are abolitionist
either completely or partially)44 on grounds of ‘rarest of rare cases’ and ‘for special reasons’.45
43
Kehar Singh v. The Union of India, (AIR 1962 SC 955)
44
Monica Sakhrani & Maharukh Adenwalla, Death Penalty: Case for Its Abolition, ECONOMIC AND POLITICAL
WEEKLY
45
Section 354(3), Code of Criminal Procedure 1973.
34
The challenge to death penalty as being unconstitutional was rejected by Supreme Court in
Bachchan Singh’s case,46 but the Court restricted the application of the death penalty to cases
wherein ‘the alternative option is unquestionably foreclosed’. In a plethora of judgments, the
court has repeatedly held that death sentence doesn’t offend article 21 of the Indian Constitution.
Death penalty in rape cases is rarely awarded, for instance in the case of Dhananjoy Chatterjee 47.
In December 2007, India voted against a United Nations General Assembly resolution calling for
a moratorium on the death penalty.48.
However, giving representation to the popular sentiments the Criminal Law (Amendment) Act,
2013 was assented on April 2, 2013. It has tremendously amended the Indian Penal Code, 1860
and the Code of Criminal Procedure, 1973, and provided death in only two cases:
 Sec. 376E provides that any person punished under sec. 376, sec. 376A or 376D and
subsequently convicted of any of those sections, then he is liable to be punished with life
imprisonment or death.
 Sec. 376A provides punishment for causing death or vegetative state with imprisonment
for 20 years to life imprisonment or death and fine.
It is, therefore, evident that capital punishment for rape may be awarded in cases of repeat
offenders and causing death or vegetative state. On the other hand, there are countries that
authorize death penalty for non-homicidal rape viz. Cuba, China, Egypt, Saudi Arabia and
United States.
Death Penalty in Rape: International Scenario
Rape is considered as the most offensive crime a human can commit. Rape victims are often
looked down in the society and had to suffer mental torture without any fault of her. This horrific
impact of physical and mental assault often ruins the life of a victim.
46
Bachan Singh vs State of Punjab, AIR 1980 SC 898
47
Dhananjoy Chatterjee vs State of West Bengal. 1994 SOL Case No 275.
48
UNITED NATIONS GENERAL ASSEMBLY, General Assembly Adopts Landmark Text Calling For
Moratorium On Death Penalty, Sixty-second General Assembly Plenary 76th & 77th Meetings, UN Doc. GA/10678
(18 December 2007), available at http://www.un.org/News/Press/docs/2007/ga10678.doc.htm
35
Different governments across the globe came up with strong laws against sexual assault to make
their country a safer place for their citizens and to make sure no one who indulged in this heinous
crime could roam free.
Here are the most brutal rape punishments of different countries around the world.49
1. India
India made its rape punishment laws even stronger after the Criminal Amendment Act, 2013.
The rapist is either given an imprisonment of 14 years and in rarest of the rare case, the rapist is
hanged till death.
2. China
The meritocratic leadership of China punishes the rapist straight away with a death sentence and
in some scenarios, rapists are also punished by the mutilation of their genitals.
3. Iran
In Iran, a rapist is either hanged or shot to death in public. Sometimes the guilty escapes the
death penalty by the permission from the victim but is still liable for 100 lashes or life
imprisonment.
4. Netherlands
Any kind of sexual assault, even including a French kiss without the consent of one is considered
a rape in Netherlands. The rapist is punished with imprisonment ranging from 4 to 15 years
depending on the age of convict.
Even a sexual assault on a prostitute will lead to an imprisonment of 4 years in Netherlands

whereas most of the countries are not concerned about the sexual assault on prostitutes.
5. France
In France, the rapist is punished with 15 years of jail time with torture which can be extended to
30 years or a lifetime imprisonment depending upon the extent of damage caused to the victim.
49
http://cdn.wittyfeed.com >pdf
36
6. North Korea
Ruled by the fanatic dictator, North Korea too has no leniency for the crime like rape. Instant
justice is given to the rape victim by shooting the rapist in the head by a squad.
7. Russia
In Russia, the convict has to serve a term of imprisonment for 3+ years which can go up to 30
years depending on the harm done to the victim.
8. Afghanistan
Justice is given to the victim in Afghanistan in just four days by shooting the rapist in the head.
9. Norway
In Norway, the rapist is punished with the detainment of 4 to 15 years, depending upon the
degree of damage to the victim.
10. The USA
The USA has two kinds of law - state law and federal law. If the rape case falls under the
category of federal law, then the rapist is awarded 30 years of imprisonment. Though state laws
of rape punishments differ from state to state.
11. Saudi Arabia
If a person is convicted of rape, then he is executed in public within days of the trial.
12. Israel
In Israel, the rapist gets imprisoned for minimum four years and a maximum of 16 years.
13. UAE
In UAE, the punishment of sexual assault or rape is death by hanging. There is no compensating,
you rape and you die within 7 days.
37
14. Greece
In Greece, the rapist is punished with incarceration.
So these are the most brutal rape punishments around the world.
Arguments In Favour of Death Penalty for Rape
 In my opinion capital punishment is a serious issue, because to kill a person is a big

decision. But yes if we talking about the criminals like rapist and terrorist than I think
there should not wait to take the right decision and that is death penalty. Rapist is the
person who have not inner soul of him, so that person has no right of living.
 capital punishment should be there for a sensitive crimes such as rapes / murders / mass
murders because this is the one and only way to be sure that the same criminal will not do
same crime ever again in future. This will also made someone (criminals) to think twice
whether he should do the same things or not. Otherwise if we abolished the capital
punishment then the criminal are like as free birds so they can do what they want.
 Extent of punishment is directly proportional to extent of crime. Punishment should be
given according to crime. If crime is heinous and unforgivable. Capital punishment is
given to criminals who have done crimes which are unforgivable such as rape or
massacre. Such criminals deserve capital punishment.
 Rapist know what they're doing. They know exactly what they are doing. It's a fun game
to them. So, does someone who is that psychotic and insane in membrain. ..Who gets off
on putting innocent people through such inhuman pain. Do they really deserve to live
another day breathing the same air as we all breath...
 Murderers shouldn't be the only ones getting executed Rapists should definitely be placed
on death row. I am not saying that the state should kill an entire list of suspects, but
definitely execute them if they are guilty of raping someone. It sucks that the Constitution
doesn't believe that rape is a crime deserving of the death penalty when clearly it is. By
simply arresting a rapist, we are paying to keep those bastards alive. Rape is NOT the
result of a mental illness. Rape is a CHOICE. The reason I believe that rapists should be
killed is because that way, it would guarantee that they wouldn't be a threat to anyone
else ever again.
38
 The eighth amendment says that punishment for crimes should not be proportional to
the severity of the crime. Rape doesn't kill people, so they shouldn't die as their
punishment.
Rebuttle: Rape kills people. Women can die of exhaustion from being raped. Women
can become pregnant which can kill them. Some women kill themselves after being raped
or live in fear the rest of their life. Many women are threatened with death from the
perpetrator or gang members they are associated with and have to enter a witness
protection program and leave their families which ruins their lives. Some women will get
STD's which ruin their love lives. When your entire life is ruined and you don't enjoy
living, you are not really alive anymore, you are dead on the inside. Women can have
their wombs destroyed making it impossible to make babies and killing her ability to
create life.
 Innocent people get convicted of rape and therefore we should not have the death
penalty for rape.
Rebuttal: False convictions in court are a completely separate problem from the law
itself. Innocent people are convicted of all kinds of crimes. According to this logic we
shouldn't have any laws, because they might get innocent people killed or in jail.
 These people have good intentions or are ignorant. They may be mentally unstable or
desperate for sex or even have uncontrollable sexual urges. Part of them knows that
they are doing something wrong, but they just can't control it. Some people rape as a
spur of the moment thing that they don’t plan.
Rebuttal: The intention of the rapist does not matter. All that matters is the consequences
of their actions. It doesn't matter if you are mentally challenged and don't understand
right and wrong. It doesn’t matter if you planned it ahead of time or planned it in a few
moments.50
50
http://www.debate.org/opinions/should-rape-constitute-the-death-penalty/arguments/B21148B9-ABF4-422F-
B794-F507A691614C
39
Arguments In Against of Death Penalty for Rape
 Rape may affect people for a long time but it certainly doesn't kill you. Justice logically
would be giving an equal punishment. The idea of a rapist being raped seems very
inefficient and an impractical method of punishment so rehabilitation and possible
psychiatric help would certain help.
 The death of a rapist is not victory of a society. It shows- you had to kill someone in
order for them to realize that women need to be respected. Capital punishment is for a
society that cannot be rehabilitated through other means. Rape is the most gruesome and
inhuman crimes that there can be, however, capital punishment in no way, acts-
1. As a deterrent to rape- Infact, it gives incentive to the rapist to kill the victim, in which
case, he automatically comes under the purview of punishment for murder which is
death penalty in most countries.
2. As a solution to the root cause of a problem - When you kill a convict, you do not
give him the chance to regret what he did, and rehabilitate not only himself, but other
men around him. More importantly, in most developing countries today, most rapists
are not even convicted as a majority of rapes go unreported and in other cases, the
administration doesn't bother enough to track them down. More important than the
severity of punishment, should be the fact that there is punishment. Nobody wants to
spend the rest 20 years of their life in jail. It is as big a deterrent for a rapist as a death
penalty would be, if the rapist knows that the crime will definitely lead to his
conviction.
 The death sentence is for the rarest of the rare cases.

While there’s no doubt that rape is a heinous crime, it is unfortunately quite common. If
we award the death sentence for rape, there’s a danger we’ll become comfortable with the
idea of killing people through sheer habit. We’ll get used to the idea that the state can
legally kill people and in my judgment, that isn’t healthy.
Already people like Baba Ramdev are advocating the death sentence for corruption. How
far do we go before we become okay with the state killing people off?
40
 More women will be murdered.

The death sentence for rape will end up being a death sentence for the rape victims.
What’s to stop the rapist from making sure she never talks? As of now, killing someone
is a greater crime than raping them. The punishment for most murders isn’t death, and to
my mind this will give rapists a license to kill off their victims to make sure they don’t
talk.
 What’s the sentence for even greater crimes?
The idea of differing sentences is to make graver crimes have stiffer punishments. While
there’s no doubt that rape is a grave crime, there are other crimes that are even worse.
The Nithari killings come to mind where Koli raped and murdered six children. To my
mind that is a more serious crime than a single act of rape and the sentence must reflect
that. Kohli got the death sentence since it was an unspeakably brutal act and was also
extremely rare. If every rape gets a death sentence, what sentence do we give people like
Kohli? Torture?
 Do we want justice or revenge?

In a civilized society, we gradually move from the concept of “punishment” to one of
reform. Only when the court senses that a person is too far gone for reform does it even
begin to consider a death sentence. This is sure to provoke strong responses, but do we
really feel that no rapist can ever change? That they’re a foregone conclusion?51
India’s view on the issue of capital punishment is still very topsy-turvy. The debate is not only
about the legality of the punishment but also include social and moral aspects. If the question of
law is kept aside, two views can be given on the issue. The first view is the security of the
society, and the public sentiments. The counter view is that it promotes the principle of “eye for
an eye” which can’t be accepted in a civilized society. On one hand by retaining the death
sentence, we may condemn someone to death, who turns out to be innocent. On the other hand,
by giving a second chance to someone, we might be giving them a bullet to shoot us, just
because they missed the first time.
51
http://www.bhagwad.com/blog/2010/politics/death-sentence-for-rape.html/
41
However, there is a felt need for change in societal behaviour. In a country where sexual
harassment and assault are endemic and where (according to a recent UNICEF Global Report
Card on Adolescents 2012)52 more than half of young males think wife beating is justified, the
belief in capital punishment requires an Olympian leap of faith across the root causes of rape
with eyes wide shut. Let us first respect women at our own personal and individual level. As far
as the law is concerned, it stands good lest it is implemented properly and in time.
52
Kounteya Sinha, 57% of boys, 53% of girls think wife beating is justified, TIMES OF INDIA, Apr 25, 2012,
available at http://articles.timesofindia.indiatimes.com/2012-04-25/india/31398208_1_domestic-violence-spousal-
violence-centre-for- social-research.
42
CHAPTER- 3
43
RAPE: A CONTEMPORARY OVERVIEW
Rape is a stigma which exists in the society from a long time. The dictionary meaning of word
rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot
commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a
woman to come out of this trauma.
Rape is a crime, which has a devastating effect on the survivors; it has been described as a
“beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-
action, diminished sexual interest. etc., “one becomes afraid of’….writes a victim, “half the
human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad
observed that “unfortunately, a woman in our country, belongs to a class or group of society who
are in a disadvantaged position on account of several social barriers and impediments and have
therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the
Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have
the right to be respected and treated as equal citizens. Their honour and dignity cannot be
touched or violated. They also have the right to lead an honorable and peaceful life”.53
Rape is a crime against basic human rights and is also violative of the victim’s most cherished of
the fundamental rights, normally, the right to life contained in Article 21 .
As observed by Justice Arjit Pasayat:
” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the
soul of a helpless female.”
Justice Krishna Iyer has observed in a very famous case of Rafiq v. State 54:
“A murderer kills the body but a rapist kills the soul.”
Rape is a crime of violence; it is not sex. At common law, rape was defined as the unlawful
carnal knowledge of a woman, without her consent. Carnal knowledge was defined as sexual
53
Akshay Goel Rape Laws in India Posted On June 7, 2011 by &filed under Legal Articles available at
http://www.legalindia.com/rape-laws-in-india/
54
1981 AIR 559, 1981 SCR (1) 402
44
intercourse. Sexual intercourse implied genital copulation. Genital copulation, in turn, connoted
the act of sexual intercourse . Unlawful carnal knowledge required sexual penetration, however
slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require
force or threat of force against the will and without the consent of the victim. Numerous law
review articles have been written on the requirements of force and against the will of the victim.
The articles focus on the force requirement and not the penetration requirement, which is the
male understanding of what is necessary when a woman is threatened with the crime of rape.
The alarming frequency of crime against women, the inadequacy of the law of rape manifested in
a number of judgements and the strong protests by social activist, jurists, judges and scholars in
general and women organisation in particular, against the failure of law to protect victims of rape
ultimately led the Parliament in 1983 to extensively amend the law of rape vide Criminal
(Amendment Act, 43 of 1983) so as to make the law more realistic. By the Amendment Act, the
word “Sexual Offence” was substituted in place of “rape” .Section 375 and 376, IPC were
extensively amended and ss 375,376 were incorporated for punishing those who molest a woman
under their custody or rape. Sexual intercourse with wife under a decree of judicial separation
has been also made punishable.55
Meaning of Rape
Rape is the most heinous and inhuman offence. It is the barbarism of the worst order. Rape or
Rapt is when a man hath carnal knowledge of a woman by force and against her will, or .Rape is
the carnal knowledge of any woman, above the age of particular years, against her will.
Rape is the act of physically forcing a woman to have sexual intercourse that is forced upon.
The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus rape literally
means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman
without her consent, by force, fear, or fraud” or “the carnal knowledge of a woman by force
against her will.” In other words, rape is violation with violence of the private person of a
woman.
55
http://www.legalservicesindia.com/article/article/need-on-capital-punishment-in-the-context-of-rape-1361-1.html
45
A man is said to commit ‘Rape’ who, except, in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
description:-
First:-Against her will.
Secondly: - Without her consent.
Thirdly: - With her consent. When her consent has been obtained by putting her or nay person in
whom she is interested in fear of death or of hurt.
Fourthly: - With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly:- With her consent, when, at the time of giving of such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance , she is unable to under stance the nature and consequence
of that to which she gives consent.
Sixthly: - With or without her consent, when she is under sixteen years of age.
Explanation:-Penetration is sufficient to constitute the sexual intercourse necessary to the offence

of rape.
Explanation: - Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
Rape Theory
Rape was narrowly identified as theft of virginity until the thirteenth century, deriving from the
Latin derivation of the word meaning to seize or carry off. In ancient times, raiding tribes would
seize and carry off not only goods, cattle and other spoils of war but also women. The rationale
of the offence was the protection of a man’s proprietorial right to control access to his wife or
daughters. From theft of virginity it evolved to an offence against the will of the victim and this
required evidence of force or resistance, as it still does in most American states. In the mid
46
twentieth century rape became “the protection of woman’s discretion by proscribing coitus
contrary to her wisher’ or, in other words, non –consensual sexual intercourse.
Some other theories about rape emerged too. Positive economic theory in the 1990s asserted on
the basis of bio-economic principles of that sexual practice and norms were rational in the
economist’s sense, males being sex seekers and females, sex-providers. Rape was a substitute for
consensual sex rather than a manifestation of male hostility towards women.56
Rape As An Institution of Patriarchy
We live in a society where skirt, jeans, cell phones and are held responsible for rape. In this
society, if women are raped, it is their fault. They had “provoked” men. Before committing the
heinous crime, the girl was verbally abused and preached against lurking late at night and with a
male friend.
Rape is an institution of patriarchy or the male-dominated world. It is a way to control the

mobility, the speech, the freedom of women. So a woman is raped or dishonoured to show her
“her limits”. “The rapist‟ s intention is not sexual pleasure (because the ONLY way in which
pleasure can be had is through the reciprocity of desire, through love, through erotic engagement,
not through taking away someone‟ s agency by force and without consent). Rape is not about
sex, it is about humiliation, its intention is precisely to make the raped person think that now that
they have been subjected to sexual violence, their life will no longer be worth living.”, remarked
Shuddhabhrata Sengupta (2013).
There has been a plethora of literature about abductions and mass rapes during the partition-
related riots. Rape was used to “dishonour” the entire country so men would ask the female
members of their family to kill themselves than fall into the hands of the enemy. Rape is still
used as a weapon during communal riots. During the anti-Muslim riots in 2002, Ayesha Khan
(2012) remarked, “Fathers and brothers, farmers and traders, who were normally law abiding
citizens had turned overnight rapists and molesters with impunity. They did so because of two
reasons: first because an unwritten social sanction gave their crimes a moral legitimacy. The act
was largely supported by Hindu women and elders who believed there was nothing amiss for
56
http://www.legalservicesindia.com/article/article/need-on-capital-punishment-in-the-context-of-rape-1361-1.html
47
Muslim women to be raped/molested or murdered, as it was rightly done to avenge the crimes
against Hindu women in 14th, 15th and god knows how many centuries, as a skewed historical
narrative became popular narrative.”57
The slogans during the Jantar Mantar protests were increasingly against victim blaming in this
patriarchal society. One of the most prominent slogans was, “instead of teaching us not to be
raped, teach men not to rape”.
The other factors held responsible for “provoking” men to rape has been identified as the
increasing demands for “freedom of women”, the commodification of women, capitalism and
urbanisation.
Rape Vs. Right to Life
Rape is a crime against basic human rights, and is also violative of victim’s most cherished of
fundamental rights, namely, right to life contained in Article 21. High Court observed that cases
need to be dealt with sternly and severely.
Right to life includes the right to live with human dignity. Women also have the right to life and
liberty. Their honour and dignity cannot be touched or violated. They also have the right to lead
an honourable and peaceful life. In Bodhisattawa Gautham v. Subhira Chakroborthy, it was
held that rape is a crime not only against the person, but also against the entire society. It
destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is crime
again basic human rights and it violates right to life.
Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right
to life right to live with human dignity. Right to life, would, therefore, include all those aspects
of life that go on to make life meaningful, complete and worth living.58
In Bodhisattwa Gautam v. Subhra Chakraborty,59 the supreme court held that
57
Devika Mittal ,“Damini” Gang-rape case and the uproar: New questions on sexual violence, role of state and the
need to transform the society, (rape as an institution of patriarchry), pdf available at
http://ssrn.com/abstract=2254621
58
http://www.gktoday.in/general-awareness/is-rape-a-crime-voilative-of-article-21-of-the-indian-constitution/
48
“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the victim’s
most cherished of the fundamental rights, namely, the right to life with human dignity contained
in Art 21”.
In Chairman Railway Board v. Das,60
A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her
rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not
afforded certain constitutional protections. Some provisions of the Indian Constitution refer to
''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article
21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus,
Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article
21's fundamental right to life, the victim was entitled to compensation.61
Basis of Rape
Hidden behind rape is the idea that the women are property. In the act of rape, a woman is
treated as an object to be possessed, a medium through which the men exert their masculinity,
their superiority and their dominance.
The basis of rape is attack or attempt on the chastity of a female. This is because high value is
attached to female chastity in all counties at all times. This indicated the bond and security of all
social virtues and happiness. The definition of rape in Indian Penal Code under Section 375 is
clumsy to remember and describe. Its basis is unlawful and carnal knowledge of a woman by
force and against her will. The carnal knowledge is constituted by the penetration in the female
genitals by the male organ. The law does not require complete penetration, even attempt is
59
1996 AIR 922, 1996 SCC (1) 490
60
A.I.R. 2000 S.C. 988,
61
http://www.hurights.or.jp/english/human_rights_and_jurisprudence/right-to-lifelivelihood
49
sufficient. The rupture of the hymen is not necessary evidence. For purpose of law, the facts of
force, the resistance and absence of consent are legally essential to constitute the offence.
Causes of Increasing Rape Cases in India
1. Blaming provocative clothing: There's a tendency to assume the victims of sexual violence
somehow brought it on themselves. In a 1996 survey of judges in India, 68 percent of the
respondents said that provocative clothing is an invitation to rape. In response to the recent gang-
rape incident, a legislator in Rajasthan suggested banning skirts as a uniform for girls in private
schools, citing it as the reason for increased cases of sexual harassment.
2. Acceptance of domestic violence: The Reuters Trust Law group named India one of the worst
countries in the world for women this year, in part because domestic violence there is often seen
as deserved. A 2012 report by UNICEF found that 57 percent of Indian boys and 53 percent of
girls between the ages of 15 and 19 think wife-beating is justified. A recent national family-
health survey also reported that a sizable percentage of women blame themselves for beatings by
their husbands.
3. A lack of public safety: Women generally aren't protected outside their homes. The gang rape
occurred on a bus, and even Indian authorities say that the country's public places can be unsafe
for women. Many streets are poorly lit, and there's a lack of women's toilets, a Women and Child
Development Ministry report said recently.
Women who drink, smoke or go to pubs are widely seen in Indian society as morally loose, and
village clan councils have blamed a rise in women talking on cell phones and going to the bazaar
for an increase in the incidence of rape.
4. Encouraging rape victims to compromise: In a recent separate rape case, a 17-year-old

Indian girl who was allegedly gang-raped killed herself after police pressured her to drop the
case and marry one of her attackers.
Rape victims are often encouraged by village elders and clan councils to "compromise” with the
family of accused and drop charges -- or even to marry the attacker. Such compromises are
aimed at keeping the peace between families or clan groups. What's more, a girl's eventual
prospects of marriage are thought to be more important than bringing a rapist to justice.
50
5. A sluggish court system: India's court system is painfully slow, in part because of a shortage
of judges. The country has about 15 judges for every 1 million people, while China has 159.
A Delhi high court judge once estimated it would take 466 years to get through the backlog in
the capital alone.
6. Few convictions: For rapes that do get reported, India’s conviction rate is no more than 26
percent. There is also no law on the books covering routine daily sexual harassment, which is
euphemistically called "eve-teasing." The passing of a proposed new sexual assault law has been
delayed for seven years.
7. Low status of women: Perhaps the biggest issue, though, is women's overall lower status in
Indian society. For poor families, the need to pay a marriage dowry can make daughters a
burden. India has one of the lowest female-to-male population ratios in the world because of sex-
selective abortion and female infanticide. Throughout their lives, sons are fed better than their
sisters, are more likely to be sent to school and have brighter career prospects.
51
Types of Rape
The Most Common Types of Rape62
Acquaintance Rape/Date Rape
Acquaintance rape, also known as date rape, is defined as the "unlawful sexual intercourse
accomplished by force or fear with a person known to the victim who is not related by blood or
marriage". This person can be a classmate, co-worker, friend, neighbor, date, and even your own
boyfriend. Acquaintance rape is far more common than stranger rape;statistics have shown that
50% to 88% of rape victims know their perpetrators.
It has been reported that as many as 15% to 30% of women will experience date rape at some
point in their lives but this number may be low because many women who have been victimized
fail to report rapes. In fact, acquaintance rape is the most under-reported form of sexual
assault. Women are reluctant to report this because society believes that a woman who was
attacked by someone she knew must have somehow "asked for it". Research has found that
victims of acquaintance rape are blamed more than victims of stranger rape.
Marital Rape
Marital rape is defined as any unwanted sexual acts by a spouse or ex-spouse, committed without
consent and/or against a person's will, obtained by force, or threat of force, intimidation, or when
a person is unable to consent. It is estimated that, in the United States, approximately 10-14% of
married women are raped by their husbands. Marital rape accounts for approximately 25% of all
reported rapes although it is the most under reported rape.
The physical and emotional consequences on survivors last for years. Emotionally, marital rape
survivors may have flash backs, inability to trust, depression, and traumatic stress disorder.
Marital rape is a controversial issue because people continue to believe in the following myths
and misinformation about spousal rape. There are those who believe that marital rape is
contractually impossible because wives gave up their right to give consent when they became
married. Even though there is still some injustice when it comes to martial rape, this type of rape
is gaining more attention today than it has in the past.
62
http://rapethetruevictim2010.weebly.com/types-of-rape.html
52
Stranger Rape
Stranger rape is defined as non-consensual, or forced sex, on a woman who does not know her
attacker. The definition of stranger rape is more readily accepted than acquaintance rape. The
lack of acceptance that acquaintance rape receives does not limit the shame attached to rape or
the trauma felt by the survivor. Ironically, stranger rape is seen as "real rape." The image of the
psychotic stranger attacking the woman is real and does occur. However, the frequency of
psychotic stranger rape is considerably less.
The majority of rapists usually target the victim from 'afar,' such as seeing her in a parking lot,
walking in the neighborhood-his access to her is assured and he calculates his attack, which may
be right away or over a period of time. Some rape survivors have later remembered seeing the
rapist, but did not suspect they were being targeted. While stranger rape is reprehensible the road
to recovery is easier than for the acquaintance/date rape survivor. This is so because with
acquaintance/date rape, there has been betrayal and the individual's sense of trust of men is
shattered and their ability to trust their own judgment of people has been shattered.
Other Types of Rape
Statutory Rape
Statutory rape is the commonly used name for the criminal offense that occurs when a person has
sexual relations with another person who is not old enough to legally consent to having sexual
relations; the sexual relations happens between an adult and a minor and the adult can be found
guilty of statutory rape in courts of law even if the minor was a willing partner.
Gang Rape
Gang Rape is when the survivor is attacked by more than one person. This type of rape tends to
include alcohol and drug use, fewer weapons, more night attacks and less victim resistance. They
occur where there are pre-existing male bonds, such as on athletic teams, in fraternities, and
within military units.
53
Prison Rape
Prison Rape is the rape of prisoners by fellow prisoners or prison guards. Prison is used to assert
power over inmates. Prison Rape does not only occur in male prisons it can occur in female
prisons as well. Prison rape is mistakenly associated with homosexuality; however it is not but
sex, but the exertion of power. Prison Rape can be difficult on survivors as they may not have
access to resources in prison. Survivors of this type of rape may not be believed, especially if the
perpetrator is a prison guard.
Drug Related Assault/Rape
Drug Related Assault is when the perpetrator uses a drug to impair the survivor for a sexual
assault. The most common substance used is alcohol. Perpetrators provide the survivor with
immense amounts of alcohol until the survivor unaware of the situation and therefore unable to
give consent. Recreational drugs may be used such as, ecstasy, marijuana, or acid in order to
diminish the survivor’s capacity to provide consent.
Landmark Rape Cases In India
There have been numerous protests, controversies, and debates on the very complex topic of
violence against women especially in recent times. And the most important outcome of
discussing gender based violence is creating space where people are able to voice their opinions
and challenge theirs as well as other’s perspectives. In my paper I will be discussing how rape is
represented in the media and will be focusing on public responses as well as how the feminist
movement developed and prompted change in the area of social justice for women in India. It is
clear that jurisdiction and those upholding the justice system need to be sensitized and more
prompt when addressing the urgent problem of violence perpetuated against women. As accounts
of media and reposes of the public as well as non-governmental organizations are analyzed, we
can delve deeper into people’s mindsets. We will discuss some landmark cases. These cases
range from 1970s to present day and are picked based on the law changes and outstanding public
responses it garnered. This will give a window into how change has been accomplished and what
54
can be done to focus on a more preventive aspect of controlling violence women face in India
particularly.63
Even in the modern 21st century, women are not safe all over the world. The constantly
increasing number of rapes in India is a serious matter for the police as well as for Indian
government. In India, Delhi has the highest number of rape cases recorded every year. Sources
showed that the number of rape cases has doubled between 1990 and 2008. According to the
National Crime Records Bureau 24206 rape cases were registered in India in 2011 only.
According to the source, a new case is reported in every 20 minutes. There are even cases that
we cannot imagine, girls and women are being molested, raped but only some of them get the
justice. With the heavy heart, I am listing some landmark Rape Cases in India.
Aruna Shanbaug Case64
The alleged rape of a 16-year-old girl at Tata Memorial Hospital, takes us back to a similar case
which shook the nation in 1973. Twenty-five-year-old Aruna Shanbaug, a nurse at KEM
Hospital, was raped and assaulted by a subordinate on November 27 of that year. Aruna was to
get married soon.
It had been proved that the accused, Sohanlal Bhartha Walmiki, resented being pulled up for his
misdemeanors and being ordered about by Aruna, and thus motivated, committed the heinous
act. He choked her with a dog chain before raping and robbing her as she was preparing to leave
after her shift. And Aruna was left speechless — quite literally.
When Walmiki choked her, oxygen supply to parts of her brain was cut off and she could no
longer speak. She also became cortically blind, lost the use of her limbs, muscle control and
suffered a kind of emotional disability, which is manifested in bouts of inappropriate laughter or
screaming. Her memory and most of her other mental faculties were also gone. Aruna was in a
kind of semi-conscious limbo, and is solicitously looked after by nurses and doctors at KEM
Hospital. She was permanently bed-ridden, curled up in an awkward foetal position. Now she is
no more.
63
Rohini Siva Srinivas (Public Health) Department of Anthropology, Advisor: Veena Das, 20 May 2015
64
http://daily.bhaskar.com/news/MAH-MUM-arunas-story-the-pain-she-felt-that-night-1913802.html
55
The rapist was caught and convicted for seven years in jail, and is believed to have started a new
life in another hospital in New Delhi.
Mathura Rape Case65
On 26 March, 1972, Mathura, a young tribal girl of about 16 year old was raped by 2 police men,
Tukaram and Ganpat, who were on duty at the police station in Chandrapur district of
Maharashtra. Her brother had pressed charges against the family of the boy, Ashok, whom
Mathura loved and after taking down statements from both parties, the police held back Mathura
in the station for further “inquiries”, but instead she was taken into the bathroom where she was
raped under the threat that her life and her family’s life was in danger is she put up a fight.
Ganpat raped her while Tukaram fondled with her private parts as he was too drunk to actually
rape her. When Mathura didn’t emerge from the police station and Nunshi (Ashok’s cousin),
Ashok, and her brother started calling out, the disturbance elicited a group of people to gather
around the station. When Mathura did emerge from the police station, she alleged that she was
raped. A case was registered as a result of an outcry by her family and the onlookers. When
Mathura was examined by a doctor, semen was found on her clothes and her hymen revealed old
ruptures and the two finger rule which was in effect then readily showed that she was not a
virgin. The doctor who tested her reported Mathura to be around 14 to 16 years old. When the
case finally reached the session court, the judge on 1 June 1974 ruled in favor of the accused by
stating that “the alleged intercourse was a peaceful affair”.
The judge did “concede that Ganpat did have sexual intercourse with Mathura, but that there was
a ‘world of difference’ between sexual intercourse and rape. He felt that Mathura had “cried rape
to prove herself virtuous before the crowd which included her lover”. What the session court
failed to recognize and take into account was that 2 police men who were on duty had
intercourse with a minor and the cops had also “violated Section 160 (1) of the Criminal
Procedure Code which provides that a ‘woman shall not be required to attend the police
investigation at any other place than the place of her residence’” .There was also the gross
violation of making assumptions based on personal perspectives. The session judges claimed that
Mathura was of “loose character” because she had physical relations with her lover, Ashok
65
Baxi, Pratiksha. Outlook. Rape Cultures in India. 23 Decmeber 2012.
56
before marriage and that since she was habituated to sex, this would not be categorized under
rape. The two constables where acquitted. But the Nagpur Branch of Bombay High Court
reversed the ruling and sentenced Ganpat to 5 years and Tukaram to one year of imprisonment.
The High court on 12 October 1976 gave the statement on this case on the basis that the Sessions
court gave a verdict based solely on circumstantial evidence, ratherthan taking into consideration
the probable sequence of events. The High Court judges motioned that Mathura didn’t know the
two policemen and they stopped her in the police station, so it could not have been a “peaceful
affair”. The doctor also found semen on her clothes but not in her pubic hair or on the vaginal-
smears, but the examination was 20 hours after the incident, so the High court took into account
the “probability that she had taken a bath in the, meantime”.
The High Court therefore ruled that Tukaram and Ganpat were to be put behind bars. The
Supreme Court overruled the High court’s ruling and sided with the Session court on 15
September 1978. The Supreme Court ruled that since Mathura did not cry out during the alleged
rape that it would have been a “peaceful affair”.
Unfortunately the court didn’t realize that just because Mathura did not cry out, especially
because she was under threat, doesn’t mean that it was a consent. The Judge disbelieved
Mathura’s claims that Mathura screamed when Ganpat held her hand and that the “cries and
alarms are, of course, a concoction on her part”. The Chief Justice justified that if Mathura was
with her brother when Ganpat caught her arm to stop her, she didn’t attempt to stop him. The
rulings reflect the mindsets, that a woman who had intercourse before marriage was of a “loose
character” and that she couldn’t have been raped then. Pratiksha Baxi, an assistant professor,
Center for the Study of Law and Governance, at Jawaharlal Nehru University, wrote about the
rape cultures in India, which correlates very well with how the law and leaders view rape. “The
judiciary, tall exceptions apart, construct rape as sex. This perspective from the rapist’s point of
view, does not frame rape as political violence, which posits all women as sexual objects. Rape
is repeatedly constructed as an act of aberrant lust, pathological sexual desire or isolated sexual
deviancy”. When the Supreme Court and the Session Court ruled in favor of the accused, barring
all the evidence that pointed against the two police men, it showed how rape is actually
perceived widely.
57
It is as clear that rape is not just about sex or lust, but it is a means of asserting power over
another human being. When Mathura’s own brother, her family filed a case against her
relationship with her lover, she was “tarnished” by her own family and went against the “rules”
that society has set on women. Tukaram and Ganpat took advantage of the situation as they too
bred in the same society viewed Mathura as a woman of “loose character” and thus it became
acceptable for them to rape her in custody. This same mindset was upheld in the Session and
Supreme Court.
But as the Supreme Court closed the case while acquitting the two men, this case caught the
interest of a few lawyers. On 16 September 1979, Upendra Baxi, Vasudha Dhagamwar,
Raghunath Kelkar, and Lotika Sarkar wrote an open letter to the Chief Justice of India contesting
the hearing of Mathura’s case. The open letter was “to focus judicial attention and public debate
over the Supreme Court decision in Tukaram V State of Maharashtra (1979)”. These acclaimed
lawyers challenged the Sessions Judge who said that the semen that was found on Mathura’s
clothes might have been Ganpat’s who had sexual intercourse with her. It was framed as sexual
intercourse which elicits the meaning that this would have been a consensual affair. And the
judge also claimed that semen found on Ganpat’s clothes could have been due to the “possibility
of his having intercourse ‘with persons other than Mathura’”. The open letter opposed this
decision by stating that “this is an extraordinary decision sacrificing human rights of women
under the law and the Constitution. The fact remains that she was asked to remain in the police
station even after her statement was recorded and her friends and relations were asked to leave.
Why?
The fact remains that Tukaram did nothing whatsoever to rescue the girl from Ganpat. Why? The
Court says in its narration of facts, presumed based on the trial Court records, that Tukaram as
intoxicated. But this is not considered material either. Why? Why were the lights put off and the
doors shut?” These valid questions raised an alarm about how the Court was so quick to deem
Mathura was in the wrong and this was a consensual intercourse rather than asking questions and
taking into account evidence that clearly pointed to the fact that Mathura didn’t initiate anything,
but she was asked to stay back and was raped. The lawyers pointed out that the Supreme Court
didn’t focus on the second part of Section 375 of the Indian Penal Code which is about how rape
can occur without the women’s consent. As pointed out there is a clear distinction between
“submission” and “consent”. “Consent involves submission; but the converse is not necessarily
58
true. Nor is the absence of resistance necessarily indicative of consent”, but the Court seemed to
think that submission on Mathura’s part meant that she had consented willingly. “One suspects
that the Court gathered an impression from Mathura’s liaison with her lover that she was a
person of easy virtue. Is the taboo against pre-marital sex so strong as to provide a license to
Indian police to rape young girls? Or to make them submit to their desires in police station?” The
Supreme Court’s ruling as well the Session Judge’s ruling seems evident that they had
preconceived notions on what is right and wrong that has nothing to do with the law and they
used their personal ideologies to bypass the law when acquitting the two accused. The Court also
as stated in the Open letter, “gives no consideration whatsoever to the socioeconomic status, the
lack of knowledge of legal rights, the age of the victim, lack of access to legal services, and the
fear complex which haunts the poor and the exploited in Indian police stations”. There is a
complexity to the situation that goes beyond the idea of consent or submission, we need to take
into account the entirety of the situation by assessing how the person’s background will shape
how they act. As legal upholders, the Court should be able to provide justice regardless of any
personal biases and prejudices.
The Open letter prompted the media to take notice of Mathura case and after so many years of
going from the Session Court to the Supreme Court, Mathura’s case came to the forefront of the
nation. Forum against Rape a feminist group in Bombay held demonstrations that demanded the
reopening of Mathura case. The protests were mainly led by women who were part of “various
women’s organizations in the city and left trade union representatives” (Mathura case 1), but
some men joined as well as the demonstration continued. The open letter and the feminist
movement on the case brought the media’s attention. But as the rising media coverage and
protests, the Court on April 2, 1980 released a statement that “We are not going to entertain your
petitions” and that “We are being cowed down by the rallies by these associations, our judgments
are being taken to the streets. Now every judgement of this court should be judged by the rallies
and slogans on the streets.” The Court tried to assert its power and refused to take the petitions
into consideration or to somehow become influenced by the public outcry.
Even as the Court was releasing statements such as this, it would later become evident that
democracy would prevail. The Court in 1983 changed the Criminal Law to include amended
rights on custodial rape cases. It was due to the landmark Mathura Case that women in India are
protected from custodial rape. In this case, Tukaram and Ganpat both were convicted. It is
59
interesting to note how due to movements and mass protests change was made possible in the
1980s. It was also the age and time when feminist organizations were burgeoning. Forum against
Rape was a direct result of Mathura case. It was the movement that garnered the media support
and brought to attention the realities of jurisdiction.
Bhanwari Devi Rape Case66
Bhanwari Devi was working as a saathin, a grassroots level government employee, as part of the
Women’s Development Project in Rajasthan. One of her roles as working in this job was to
spread awareness and protect children from early marriages. When she spoke up against the child
marriages in the village and tried to stop Gurjar from marrying his 9 month old daughter,
Bhanwari Devi was immediately ostracized. Even when the police was called as part of the
intervention process, the marriage took place the very next day. But people from the village were
unhappy with Bhanwari Devi’s “interference” and were alienating and discriminating against
her. And on 22 September 1992, while she and her husband were working in the fields, five
villagers beat her husband unconscious and raped Bhanwari Devi. Five men, Ram Karan Gurjar,
Ram Sukh Gurjar, Gyarsa Gurjarm Badri Gurjar, and Shravan Sharma gangraped Bhanwari Devi
for the sole reason that she intervened in their family affairs and tried to stop the marriage. When
Bhanwari Devi reported the incident in the police station, the main police doubted her and
reluctantly took down her record of the event and even claimed that Bhanwari devi was “too old
and unnatractive to be raped by young men”. Nonetheless she was sent to get a medical
examination done. It took more than a day for Bhanwari Devi to get the necessary formalities
taken care of before she was allowed to be tested and the vaginal swab was taken 52 hours after
the incident even when the law required the test to be performed within 24 hours. The trial
nonetheless began promptly at the lower court in Rajasthan. Many local women’s groups and
National Commission for Women fought against the Court claiming that “the Jaipur district
administration for deliberately attempting to dilute and weaken the case of a saathin Bhanwari
Devi” so as to protect the upper caste men who committed the crime. But even from the push
from women’s groups and feminist organizations, on 15 November 1995 the 5 accused in the
rape were acquitted on the basis that “upper caste men, including a Brahmin, would not rape a
66
Times of India. Four Women India Forgot: Bhanwari Devi,No Justice for gang-rape victim. 16 November 1992
available at the Times of India website
60
woman of a lower caste”. The police and court’s responses show how rape is viewed. Instead of
being seen as a forceful assertion of power over another human being as all the rape cases
represent, it is seen more as lust. Instead of recognizing that those of lower caste are usually
overpowered by the higher caste people in the community and taking into effect the
circumstantial evidence that Bhanwari Devi was targeted by these men of the higher caste when
she stood up against child marriage in their family. But in the early 1996, women’s
organizations, CBI, and Rajasthan government filed for an appeal regarding the acquittal in the
High Court. Even with the appeal, no action has been taken and Bhanwari Devi has not gotten a
fair trial and justice even today. But as a direct response to this case, the Vishaka guidelines
(Supreme Court of India Vishaka & Ors vs State of Rajasthan and Ors) came about which
enforces “fundamental rights of working women under Articles 14, 19, and 21 of the
Constitution of India in view of prevailing climate in which the violation of these rights is not
uncommon”. The Vishaka guidelines was also outlined by Justice Verma and today has
provided rights to numerous women in workplaces. But as Kavita Srivastava, activist and
People’s Union for Civil Liberties chief in the state who was actively fighting for Bhanwari Devi
said that, “Bhanwari’s case was a pioneering one for the anti-rape movement. It has brought
about a change even in the system of accountability of the police. Many women have gained
from Bhanwari Devi’s struggle, but sadly not her.” Even for Bhanwari Devi’s case to have gone
to court and for an amendment to criminal law to emerge, the women’s groups and feminist
organizations had to fight for years. Regardless of the NGOs fighting for Bhanwari Devi and the
international coverage that the case received, Bhanwari Devi was called for a conference in
Neijing on the national women’s issues, she did not receive justice. It was for the sole fact that
she was of a lower caste. The media’s attention over the years waned and she still resides in a
village trying to make a living by selling pots. It has been over 25 years and she is still fighting
for her justice.
Priyadarshini Mattoo Rape Case67
“Though I know he is the man who committed the crime, I acquit him, giving him the benefit
of doubt”.
67
Santosh Kumar Singh vs. State through CBI- ( 2010) 9SCC747
61
This shocking statement of the Additional Sessions Judge, G.P. Thareja in Ms. Priyadarshini
Mattoo case, while acquitting the accused reflects the deplorable state of our criminal justice
system. This is one of the cases to have triggered public indignation over the miscarriage of
justice at the instance of high profile and influential accused Santosh Kumar Singh, son of
Former Senior IPS Officer J.P. Singh. Over the years corruption in the judicial system coupled
with political influence has become so rampant that it has in turn resulted in distortion of the
entire Indian Judiciary.
It is said, “Power corrupts and absolute power corrupts absolutely.” It is ironical that the
Judiciary itself being one of the most potent organs of the government is subdued by the rich and
persuasive lot of the society. Sadly almost all the constitutional safeguards and restraints on
judicial misconduct are now dead.
Background of the case
Priyadarshini Mattoo was a 25 year old law student, who was found raped and murdered at her
house in New Delhi on 23 January, 1996. Priyadarshini finished her school from Srinagar
thereafter her family migrated to Jammu. After completing her B Com from Jammu she joined
Delhi University for her LL.B. course. She had lodged several complaints of harassment,
intimidation and stalking against the accused Santosh Kumar Singh who was also a student of
LL.B. in campus Law Centre, Faculty of Law, University of Delhi. The accused had passed
LL.B. from University of Delhi from the said Campus Law Centre in December, 1994.
Repetitive complaints made by the deceased turned out to be completely futile in as much as it
failed to deter the accused who continued to harass her. Despite the earlier two undertakings
given by the accused subsequent to the complaints registered against him by the deceased at the
R.K. Puram and Vasant Kunj Police Station on 25 February,1995 and 16 August.,1995
respectively, on 06 November.,1995, he again tried to harass the deceased at the Campus Law
Centre. After this an FIR under section 354 of Indian Penal Code (IPC), 1860 was lodged against
him at the Maurice Nagar Police Station for which he was arrested and subsequently released on
personal bond. The deceased had also filed a complaint dated 27 October, 1995 to the Dean,
Faculty of Law, and Campus Law Centre stating harassment. The accused was advised to desist
from such activities .Infact the gravity of the matter was such that the deceased was advised to
62
meet the Deputy Commissioner of Police (South West) to whom she complained against the
accused upon which, a Personal Security Officer was provided to the deceased.
As a result of these, on 30 October ,1995 the anguished accused out of vindictiveness made
frivolous complaints to the authorities at the Delhi University against the deceased that she was
concurrently pursuing two courses at the same time. Because of this, the result of the deceased
was withheld by the university which issued show cause notice to which she was to reply at the
earliest. The accused followed the matter against the deceased in his personal capacity. In her
explanation, the deceased claimed that she had completed her M.Com in 1991 and was yet to
appear in her LL.B. III year exam, thereby refuting the charges levied against her. She also
reiterated harassment by the accused for the past one and a half years from then. On the fateful
day of the murder when the deceased was alone at her residence at B-10/7098, Vasant Kunj the
accused came at her house. On the arrival of the security guard Rajinder Singh at the deceased’s
residence it was found that Priyadarshini Mattoo was lying under the double bed and there was
no movement of her body. Thus an FIR under Section 302 of Indian Penal Code (IPC) was
lodged at his instance at the Vasant Kunj Police Station. In the statement recorded under Section
161 of Cr.P.C. Rajeshwari Mattoo, the mother of the deceased had suspected the accused and
therefore he was joined in the investigation.
In the Trial Court
The matter was taken up by the Delhi Police but there after on a request placed by C.L. Mattoo;
the deceased’s father the case was handed over to Central Bureau of Investigation (CBI) on 25
January, 1996. After a thorough investigation made by CBI into the matter, on 11 April, 1996,
the Central Agency filed charge sheet against Santosh Kumar Singh. The accused was challaned
in accordance with law. Thereafter the case came up for hearing and the then Additional Sessions
Judge, S.C.Mittal was pleased to frame charges under Sections 302 and 376 of IPC. The accused
pleaded not guilty to the charges and claimed trial. On 11 August, 1997 the trial began. On 3
January, 1998 in all; as many as fifty witnesses were examined in the court. After taking into
account all the circumstantial and documentary evidence produced by the prosecution, the trial
court on 3 December, 1999 acquitted the accused giving him a benefit of doubt stating that the
CBI had failed to correctly produce the evidence and had acted in an unfair manner.
Furthermore, it was pointed out that the DNA report presented by the CBI was fabricated sand
63
therefore, inadmissible in the eyes of law in view of Section 45 of the Indian Evidence Act,
1872.
In the High Court
The trial court judgement took everyone by surprise more so when the trial court was convinced
that there was no doubt in the prosecution case. The judgement was erroneous on the face of it in
as much as the trial court had itself observed that, “the DNA finger printing report conclusively
establishes the guilt of the accused.” Therefore, in view of the fallacious decision followed by
subsequent huge public outcry, on 29 February, 2000 the CBI filed an appeal in the Delhi High
Court. It was only after six years that the High Court heard the matter on a day to day basis.
The High Court too shuddered at G.P. Thareja’s verdict, it said, “By acquitting the respondent
despite being convinced that there was no doubt in the prosecution case, the trial court has
mauled justice, and its decision has shocked the judicial conscience of the court.”
On 17 October, 2006 the High Court overturned the trial court verdict of seven years ago and
Justice R.S. Sodhi and P.K. Bhasin patted CBI, the same agency that had lost its case in the
lower court, for proving Santosh Kumar Singh’s guilt “beyond any doubt by unimpeachable
evidence.”On 30 October, 2006 the Delhi High Court convicted the accused for the commission
of offences punishable under Sections 302 and 376 of Indian Penal Code and sentenced him to
death.
In the Supreme Court
On 19 February, 2007 the accused Santosh Kumar Singh preferred an appeal in the Supreme
Court against the award of death sentence by the Delhi High Court. On 6 October, 2010 the
Bench comprising Justices H.S. Bedi and C.K. Prasad upheld the conviction of Santosh Kumar
Singh in the fourteen year old Priyadarshini Mattoo rape and murder case. It, however, reduced
the punishment of death sentence to life imprisonment saying that certain things were in favour
of the appellant. The Bench opined that, “the balance sheet was in favour of Santosh Kumar
Singh and the ends of justice would be met if Santosh Kumar Singh’s death penalty is commuted
to life imprisonment.”68
68
Richa Srivastava, Case Comment on priyadarshini Mattoo Rape Case,21 April,2011
64
Badaun Case69
This is one of the most controversial case that is still being contested by women’s groups in
India. On 27 May 2014, two young girls 14 and 16 years old went to a nearby field to relieve
themselves as there were no toilets at home. When they didn’t return promptly, the villagers
(families both girls) searched for them with no avail so they went to file a missing report at the
police station. The police were unheeding and instead asked for the caste of the family before
taking the report down. Because the family is from the Dalit caste (lowest caste known as
“untouchables”), the police expressed bias and they didn’t take active response in looking for the
girls. The very next day, on 28 May 2015, the girls were found hanging from a tree in the village
(Katra Sadatganj village in Badaun district of UP). The villagers refused to let the girls’ bodies
be taken down from the tree until those who were responsible for the girls’ death be arrested. On
May 30th, five who were accused, Pappu, Awadhesh, and Urvesh Yadav and constables
Chhatrapal Yadav and Sarvesh Yadav, for this crime based on eye witness evidence, were
arrested. On June 2, two of the men arrested for allegedly raping and murdering the two girls
accepted to the crime in police custody. The case became more and more politicalized when the
Bahujan Samaj Party (BSP) chief Mayawati petitioned the imposition of Samajwadi Party’s (SP)
president’s rule in Uttar Pradesh. Rahul Gandhi, the Vice President of the Congress party
demanded that the Samajwadi Party order a CBI probe into the matter and give justice to the
family as soon as possible. The Uttar Pradesh Chief Minister of that time Akhilesh Yadav, who
was receiving a lot of backlash of the lack of proper control and rule over the state, accepted the
Central Bureau of Investigation (CBI) to investigate this case.
Women’s organizations, All India Democratic Association condemned gang rape and murder
and demanded fast court to be established. Protesters mostly women gathered in Lucknow in
front of office of former Chief Minister Akhilesh Yadav to ask for sensitization of police and for
stronger jurisdiction. The UN also released a statement on 2 June 2014 condemning the acts of
violence against women in India. With national and international pressure rising, a special
investigation team was set up to probe the case. A group of women in Kerala protested in the
public on 11 June and on 12 June CBI begins investigation and registered the First information
report of the case. On July 20, CBI wanted to exhume the bodies for a second post mortem report
69
krieger.jhu.edu/woodrowwilson/wp-content/.../Siva-Sriniva-Rohini-Final-Paper.pdf, 20 May 2015
65
to confirm whether the girls were raped, but with the overflow of the river they were unable to
exhume the body. A forensic test was run instead and CBI didn’t file a charge report against the
five accused since the test ruled out sexual assault. The lie detector test according to the CBI
showed that the family of the victims were hiding evidence about phone calls that the elder girl
made to Pappu Yadav. The CBI used all these as evidence to exonerate the five accused without
charge. Akhilesh Yadav defended his rule by stating that the families are usually the cause of
many of these suicides and that Rahul Gandhi as well the opposing parties owe him an apology.
There are many questions that need to be raised as pertaining to this case. First, the parents of the
two girls went immediately to the police station when they couldn’t find their daughters and one
of their relatives (the eyewitness) confirmed that five men dragged the two girls away. The
police didn’t take any prompt action. Why didn’t the police take action? This is an important
question to ask and to focus on as inaction by the legal system starting from the local police leads
to increase in crimes. If the police had taken action, the two girls could have been safe. Second,
the CBI reported that the elder of the two girls had a relationship with Pappu Yadav and used the
numerous calls exchanged between the both as evidence for this relationship. What if the phone
calls were for other purposes? And the CBI also stated that the elder girl was about to have
intercourse with Pappu, when her uncle saw them and fearing repercussions and social isolation,
the two girls decided to commit suicide. Even if the older girl decided to commit suicide why
would the younger one also follow through? NGOs did a test where two girls of the same built
and age were asked to climb the tree where the girls were found hanging and the girls were not
able to climb that high without support. But the CBI disregards this by stating that it used its’
own evidence to reach this conclusion. If the girls did commit suicide fearing their family and
society and the family knew about this, why would they want to make this more public? Are they
not aware of their reputation now? The first post mortem report said that the girls were raped.
The two accused in the rape and murder of the two girls accepted to the crime as well. What
happened to these evidences? Why are these questions not being addressed or answered? NGOs
and women’s groups have been aiding the family and with their support the family of the two
girls have been able to file a case and follow through with the proceedings. The media was also
biased in this coverage. The two girls’ faces, their identity were revealed as soon as they were
found hanging from the tree even when anonymity had to be maintained as per the rule. The
media also portrayed the cause of rape to be lack of sanitation facilities at home and that is the
66
reason for the girls venturing into the fields late at night. But I disagree with this claim. There is
no other reason for rape or crimes against women except the sexual objectifying of women,
especially those of the lower caste. Women whether at home or in public spaces are in danger of
sexual harassment. It is necessary to talk about changing the mindsets primarily. There was also
no widespread protests seen as in the Delhi case and mostly women organized protests.
The entire turn of events is very controversial and though NGOs have petitioned for the CBI to
reveal all its’ evidences and filed for the reopening of the case, there hasn’t been much action
taken. CBI did agree to release its’ evidences after all this time and after prompting for quite
some time. Feminist organizations have been at the forefront for prompting change especially in
the legal and social justice aspects of protecting women’s right. They have constantly pushed the
cases through the courts, elicited media response and sparked the public’s interests by organizing
protests, etc. As can be seen from all the cases, it was the women’s groups and protesters who
have brought upon any sort of change and even gave recommendations to law changes. There
have been numerous positive outcomes through this, the Criminal Law Amendment Act of 1983,
which protects women from custodial rape, the Vishaka guideline of 1997, which protects
women from sexual harassment at workplaces, the ban of the two finger test to prove rape have
all been addressed. And rape no longer is just subjugated to the definition of peno-vaginal. All
these changes together bring about hope for further change in the society’s mentality and the
legal system. There are still numerous challenges that are present. Leaders of the country need to
take a stronger control over how women are being treated and make the legal system strong
enough to condone those who give out regressive statements about women to face serious
consequences. When those who are in power, the leaders are held responsible for their action,
there will be more fear in the public when it comes to sexual harassment and rape cases.
Hopefully addressing these needs will change the mindsets over time and create an equal society
for both women and men. Gender based differences can be seen throughout the world and here
we focus only on India so as to get a better idea about what are the challenges and how to
overcome them.
67
Shopian Rape and Murder Case
On 29th June 2009, two sisters in law’s went missing from their house in Shopian district,
Jammu and Kashmir. On the next day, their bodies were found, one kilometer away from their
house. Both the women were raped and then murdered. As the news spread, hundreds of people,
including a large number of women gathered on the streets, went protesting. No FIR was
registered on the spot, but when this case spread, the police filed the FIR report after 11 days.
Geeta Chopra Rape and Murder Case
Geeta Chopra and her brother Sanjay Chopra, two teenagers who were first kidnapped and then
murdered in New Delhi in the year 1978. Two men, Jasbir Singh and Kuljeet Singh were
convicted kidnappers, kidnapped the duo for ransom, but then after getting to know their family
backgrounds, they killed Geeta and her brother. They also rape Geeta before murdering her.
After a few months, they were arrested while escaping on a train. Both culprits were found guilty
and hanged till death in 1982.
Soumya Rape and Murder Case
Soumya, a 23 year old woman was travelling from Ernakulam to Shornur, Kerala. On 1st Feb
2011, she aboard a passenger train. After several minutes, when the train reaches the Vallathol
Nagar station, the convict, named Govindachami a 33 year old man, tried to rob her and smashed
her head on the wall, and threw her out of the train. He carried her to the woods near the railway
track and raped her. Soumya died the very next month in a Government medical school. The
criminal was caught and hanged.
Jalgaon Rape Case
The Jalgaon rape case is one of the prime cases of human trafficking in Maharashtra. It came into
the light in mid-1994. It was estimated that as many as 500 innocent girls and women were
victimized. Most of them were school minors. Reports show that many were tranquilized before
being sexually assaulted and they were blackmailed. The nexus of human trafficking finally
broke after a few girls lodged a police complaint in 1993, which helped police and authorities to
free those women and children.
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Anjana Mishra Rape Case
Anjana Mishra rape case was one of the many high profile rape cases in India, which took place
in Orissa in 1999. The then Chief Minister J. B. Patnaik and his friend, former Advocate-General
of Orissa Indrajit Ray were both accused by Anjana of having played a role in the incident.
Anjana and her friend were travelling in a car on the very day of the incident when they were
intercepted by three men and gang raped in front of her friend. Two out of three culprits were
arrested and sentenced to life imprisonment and a fine of 5000 each. The rape case spoiled the
ruling party’s image.
Ajmer Rape Case
In 1992, India again witnessed a brutal and inhuman case of coerced sexual exploitation in
Ajmer, Rajasthan. A gang, with evil intentions, befriended over 100 of school girls and then
raped them. They photographed them to further exploit the victims. After being raped, depressed
victims committed suicide. Eight people were arrested after an intense investigation of police and
women-focused NGO’s, and sentence them to life imprisonment. And look at the irony, even
after this, state court decided to reduce their life sentence to 10 years of imprisonment.
Suryanelli Rape Case
Dharmarajan, the only man convicted. A 16 year old girl from Suryanelli village of Idukki
district in Kerala was abducted and gang raped by 5 persons repeatedly over 40 days. This is a
high profile scandal in Kerala, including various notable persons and politicians. On January
1996, the girl’s family just relocated to the village at that time because of her father transfer
when she went missing for straight 40 days without any trace. She was later spotted near her
father’s office in a dreadful state. After several close examination, doctors confirmed molestation
and rape. In 2012, it was reported that the company that she was working lately suspended her in
a case of breach of trust and forgery, but reinstated after 8 months due to public pressure. She
also stated that her family is still treated as outcast.
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Bahraich Rape Case
This case takes us to the Bahraich district of Uttarpradesh, where a 15 year old was murdered
and her body was found hanging from a tree. The girl was kidnapped from her home at Nanpara
just 160 kilometres from Lucknow. According to the reports three people first raped and killed
her, and later hanged her dead body to the tree to make it convincing of a suicide. After
investigation several police constables were suspended for failing their duties.
Vachathi Case
The Vachathi refers to devilish crime, happened on June the 20th in 1992. A team of 263 forest
personnel with police entered Dalit dominated village of Vachathi in Dharmpuri district, Tamil
Nadu, searching and inquiring about Veerappan a renowned Sandalwood smuggler. During the
search they destroy their house, ransacked the villagers’ property, killed their cattle and raped 18
women. After the CBI inquiry all of them found guilty, 54 of the accused died by the time and
remaining 215 were sentenced to jail. The case illustrates not only the state of women in rural
India, but the grudge of Dalit women in our modern society.
Imrana Rape Case
A 28-year-old Muslim woman was sexually assaulted by her father in law in Muzaffernagar on
6th June 2005. After this, the village elders announced Imrana’s marriage with her husband null,
as the Sharia regards sexual relations with both the father and son as illegal or forbidden. This
sparked nationwide controversy as some argued that the case was treated as an adultery and not
rape case. The police registered a case under section 376 and 506 of rape and intimidation. He
was sentenced 10 years of imprisonment and a fine of Rupees 3000.
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Justice Malimath Committee Report on Sexual Offences
The recommendations on offences against women ignores the struggles and suggestions of the
women's movements. These suggestions include the drafting of a law on sexual assault, a law to
deal with child sexual abuse, criminalising marital rape and decriminalising homosexuality. The
women's movements have also been demanding a law to regulate the conduct of trials of cases of
child sexual abuse. The committee seems to have ignored the demand to do away with the
definition of molestation in the IPC, which even today talks of outraging the modesty of a
woman. Instead, it suggests that adultery be made punishable for the wife too to "preserve the
sanctity of marriage".
The positive recommendations, such as expanding the definition of rape to include all forms of
forcible penetration, are eclipsed by the indifference to most of the concerns of the women's
movements. The committee does not favour the death penalty for rapists. In fact, the report states
that wherever the death penalty is a possible punishment it should be replaced with life
imprisonment without commutation or remission.70
In India, victims of sexual crimes wait for long, oppressive years in the hope that some day
justice would be theirs. But it remains just that: a hope. The acquittal rate for crimes like rape,
molestation and child sexual abuse is alarmingly high. The law remains in favour of the accused
and vicious for the victim.
Then comes along a man carrying drastic recommendations that can make path breaking changes
in the trial and punishment of gender crimes. The Justice Malimath Committee report, submitted
to Deputy Prime Minister L.K. Advani, does just that. By replacing "proof beyond reasonable
doubt", with "clear and convincing proof ", it can help raise the conviction rate in sexual crimes.
Till now, "proof " in rape cases is an ambiguous excerpt of dogma, doubt, hearsay, social
hostility and stifled accounts. In a significant departure from Section 376 of the IPC, which
excludes non-penile penetration from its definition of rape, this report suggests a separate clause
to deal with such offences. Used sensitively, this reform will nail down the maniacs who
sexually abuse children.
70
http://www.frontline.in/static/html/fl2018/stories/20030912001708300.htm
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Empowering victims to participate in trials that involve crimes punishable by seven years and
more is another laudatory recommendation. It will take away the compulsion to accept a lame
prosecution and open options for intervening NGOs or women activists to fight cases more
strongly. The report also takes into account progressive socio-cultural changes. It recommends
maintenance for a woman who has had a long live-in relationship with a man.
The success of these radical reforms depends on support from the entire political class. But to
prevent its possible fossilisation, it must seek the trust vote of the citizens before that of the
leaders. This debate should be taken out of Parliament, to women who live under the constant
siege of sexual crimes. Let the politicians listen, for a change, to voices other than their own. Of
those who will finally become the subject of these reforms.71
Law Commission’s 172nd Report on the Review of Rape Laws in 2000
The Government’s attempt to enact a law to mete out justice to victims of sexual assault falls far
short of the demands of groups fighting for the cause. At a demonstration organised by women's
organisations to protest against the rising number of cases of sexual assaults, in New Delhi.
In March 1972, Mathura, a 16-year-old tribal girl from Chandrapur district, Maharashtra, was
taken to the police station by her brother and other relatives as they were concerned that she was
under age and yet was attempting to elope with her lover. The two policemen on duty said they
wanted to record Mathura's statement when she was alone. They raped her, while her relatives
waited outside. The Sessions Judge held that since she had earlier eloped with her boyfriend, she
must have been habituated to sex, and, hence could not be raped. The High Court reversed the
judgment, sentencing the policemen to six years in prison. In 1979, the Supreme Court again
reversed the order. The judges felt that since Mathura had not raised any alarm, and since there
were no visible injury marks on her body, she must have given her consent.
The Mathura rape case galvanised the women's movement into asking for reforms of the criminal
law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act,
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http://indiatoday.intoday.in/story/justice-malimath-committee-report-on-gender-crimes-deserves-full-social
political-support/1/206475.html
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which created a rebuttal presumption in cases related to custodial rape. The government also
made amendments stipulating that the penalty for custodial rape should not be less than seven
years' imprisonment; and it provided for in camera proceedings and made the disclosure of the
victim's identity a punishable offence.
These amendments were not enough to stem the rise in the number of cases of sexual violence
against women. One crucial defect in the law was the definition of rape under Section 375 of the
Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other
physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as
`outraging the modesty of a woman'.
In 1997, Sakshi, an organisation involved in issues on women and children, approached the
Supreme Court through a writ petition asking for directions concerning the definition of rape in
the IPC. The Supreme Court then directed the Law Commission of India to respond to the issues
raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy,
responded by saying that the 156th Law Commission Report had dealt with these issues. The
Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise
issues raised in the writ petition. In August 1999, it directed the Law Commission to look into
these issues afresh.
The Law Commission then prepared a draft of its comments and invited Sakshi to give its views
on changes to the criminal law. Later, three other organisations, Interventions for Support,
Healing and Awareness (IFSHA), the All India Democratic Women's Association (AIDWA),
and the National Commission for Women (NCW) also presented their views on the matter. After
detailed consultations with these organisations, the Law Commission released its 172nd Report
on the Review of Rape Laws, in 2000.
The Law Commission recommended changing the focus from rape to `sexual assault', the
definition of which goes beyond penile penetration to include penetration by any part of the body
and objects, taking into account cunnilingus and fellatio.
The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which
would prevent a victim of rape from being cross-examined about her `general immoral character'
and sexual history. It suggested graded sentences, with higher punishment for rape committed by
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the relatives and persons in `trust or authority', public servants, and superintendents, management
and staff of hospitals. It introduced a new Section 376(E), which would include sexual
harassment at the workplace.
The commission recommended shifting the burden of proof of consent to the accused. It
suggested specific provisions that would deal with the medical examination of the victim as well
as the accused by a registered medical practitioner. It said that girls who are victims of rape
should be questioned only by a female police officer, in the absence of whom a qualified woman
from a recognised social organisation should do the questioning.
The commission suggested that the law relating to sexual assault be made gender neutral, that is,
men and women can be charged with the rape of men, women and children. This meant that for
the first time the sexual assault of minor boys was made prosecutable under the law. It asked for
Section 377 of the IPC to be dropped, thus decriminalising sodomy.
However, the recommendations did not take into account marital rape. It raised the age of
consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the
husband. It also continues to provide a window for Judges to reduce the sentence in case of
convictions below the minimum sentence specified, as suggested by the commission which
states: "Any number of situations may arise, which the Commission cannot foresee that may
necessitate the awarding of a lesser punishment."
Many women's rights, child rights and sexual minority groups, which were unhappy with the
Law Commission's recommendations, met in Mumbai in 2001. Though they welcomed the
expansion of the definition of sexual assault, the recognition of child sexual abuse, and the
modifications to the Indian Evidence Act, they felt that the process involved was not consultative
enough and that making rape laws gender neutral would lead to the misuse of the law, as rape
was a gender-based crime. They also disapproved the fact that the recommendations did not take
into account marital rape.
Women's groups in Delhi then began extensive discussions with AIDWA. Based on these
discussions, Kirti Singh of AIDWA drafted an alternative Bill, which was then circulated.
Meanwhile, the Women and Child Department (WCD) of the Central government, based on the
recommendations of the 172nd Law Commission Report, began drafting a Criminal Law
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Amendment Bill or the Sexual Assault Bill. It held a meeting with a few women's groups in
Delhi and representatives from some State governments, to discuss the draft Bill. Vrinda Grover,
a lawyer present at the meeting, said that Delhi-based organisations asked the WCD to consult
organisations all over the country, which worked on child rights, women's rights and the rights of
sexual minorities.
So far this year, there have been 382 reported cases of rape in Delhi alone. The latest report of
the National Crime Records Bureau (NCRB), published by the Union Ministry of Home Affairs,
shows that the number of reported cases of rape nationally has increased from 15,151 in 1999 to
16,496, an increase of 6.6 per cent.
Based on the Law Commission's recommendations, the government enacted an amendment in

the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to
Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be
questioned about her past sexual conduct and her `general immoral character'. There has been no
sign of the government implementing the rest of the Law Commission's recommendations.
Deputy Prime Minister L.K. Advani has on more than one occasion publicly declared that rapists
should be given the death sentence. There is a broad consensus among women's groups that such
a move would be counter-productive. According to a report on the study of rape laws released by
the NCW in 2000, the rate of convictions for rape, already as low as 4 per cent, would decrease
further if rape was made an offence punishable by death.
The Sexual Assault Bill seeks to reform only a small part of the wide-ranging reforms that the
women's movement has been demanding since Mathura. Says Kalindi Deshpande, national
treasurer of AIDWA: "The legal framework must be used to seek justice for women. We need to
wait for the next Parliament session to mobilise lobby for a Bill on Sexual Assault." Vrinda
Grover adds: "What we need is a more participatory process where groups working on the issue
from all over the country are given a chance to make their submissions. But the fear is that the
government will not take all this effort seriously and will come up with a distorted version."
For reform of rape laws to be effective, it has to be accompanied by a much wider range of
actions to tackle patriarchal institutions including the judiciary and the Central and State
Legislatures, which will have to pass the law. Ratna Kapur from the Centre of Feminist Legal
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Research (CFLR) asserts: "There has to much more of a rights-oriented approach. It is easy for
everyone to support legal initiatives around sexual wrongs, but when you do not have
simultaneous movement to support sexual rights, you will end up with a highly moralistic and
protectionist piece of legislation."72
The Indian courts have emerged as the most powerful courts in the world with virtually no
accountability. But every institution even the courts go wrong. The judiciary are peopled by
judges who are human, and being human they are occasionally motivated by considerations other
than an objective view of law and justice. It would be foolish to contend that none of them at
least at some point in time are motivated by considerations of their own personal ideology,
affiliations, predilections, biases and indeed even by nepotistic and corrupt considerations. But
the Courts cannot afford to award judgments based on ethical and moral grounds, rather the
bases should be purely legal in character. The role of a judge is not to read between lines but to
offer a fair, just and reasonable interpretation of question of law posed before it. “Justice may not
only be done but it must also seem to be done.” Thus, the judiciary as a fillip to the nation must
strive to deliver justice in all circumstances without any fear, favour, affection or ill will.
The courts and the legislature have to make many changes if the laws of rape are to be any
deterrence. The sentence of punishment, which normally ranges from one to ten years, where on
an average most convicts get away with three to four years of rigorous imprisonment with a very
small fine; and in some cases, where the accused is resourceful or influential- may even expiate
by paying huge amounts of money and get exculpated. The courts have to comprehend the fact
that these conscienceless criminals- who sometimes even beat and torture their victims- who
even include small children, are not going to be deterred or ennobled by such a small time of
imprisonment. Therefore, in the best interest of justice and the society, these criminals should be
sentenced to life imprisonment.
Law remains but the number of victims (including minor) continues to increase destroying the
very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to
the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of
violence that happens to be expressed through sexual means’.
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Siddarth Narrai, For an effective law on rape
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The Amendment 1983 has brought about some important changes in the existing laws of rape as
a response to the growing public opinion demanding more stringent anti rape laws. It amends
Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of
minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or
other places of custody established by law. The Act further inserts a new Section 114-A IEA, by
raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant
women and gang rape at least partially, removed the infirmity from the evidence of a victim of
rape that was hitherto unjustly attached to her testimony without taking note of the fact that in
India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times
to come and unless her story was painfully true she would not have taken such a grave risk
merely to malign the accused.
Severe and certain punishment in a time bound manner, of the rapists has some deterrent value.
Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some
behavior-altering deterrent values. Many well-known jurists and public men have advocated
capital punishment for the criminals who commit rape as it is an offence worse than murder so
far as its impact is concerned. Still there is need for amending the anomaly related to the age of
consent, and of wife in accordance with the Marriage Act in India.
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CHAPTER- 4
78
THE NIRBHAYA CASE: A FIGHT FOR JUSTICE
Rape and the issue of violence against women in general have been endemic to Indian society,
with high profile cases capturing national and international attention for brief bouts of time
before dying down and becoming part of commonplace history. This is an ironic phenomenon,
considering the majority of the population religiously worships female goddesses who represent
courage, prosperity, and power. Currently, it is estimated that ninety-three women are being
raped in India every day.
The Delhi gang-rape case seems like a plot of Damini, a 1993 Hindi film directed by Rajkumar
Santoshi, in which a rape victim dies after batting for life in a hospital.
However, the similarity ends just there because this is reality, a reality which is hard to believe
because it involves the brutal sexual assault of a young girl who wanted to serve the nation by
becoming a doctor.
Four years ago on the night of December 16, 2012 the brutal gangrape of a paramedical student
by six men on a moving bus in the national capital shook the nation for the sheer brutality and
torture inflicted on the hapless girl.
The girl and her male friend fought bravely but she suffered fatal injuries and was admitted to
Delhi's Safdarjung hospital. Despite the best efforts by the doctors, her condition kept on
deteriorating and she had to moved to a Singapore hospital even as thousands of youngsters
protested on the streets of Delhi demanding justice for her. She finally succumbed to her injuries
on December 29, 2012.
Seeing the massive anger against the heinous crime, the government was forced to set up a three-
member committee to suggest changes in the anti-rape laws.
One of the perpetrators of the crime was a juvenile who was sent to a juvenile home for just 3
years while another accused died mysteriously in the jail during the trial.
But even after four years of the horrific crime that shook the entire nation, justice is yet to be
fully delivered to the girl's family.
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Facts of the Case
In 2012, a case of rape occurred that made international headlines and stirred an unprecedented
uprising in Indian society. At around 8:30pm on December 16, 2012 a twenty three year old
female paramedic student named Jyoti Singh, i.e. Nirbhaya,73 and her friend were waiting for a
public bus in South Delhi after attending a viewing of Life of Pi. A bus with tinted windows
eventually stopped, whereupon a young boy persuaded the pair to board the bus with the promise
of transportation home. At that fateful moment, Nirbhaya was violently assaulted and raped by
six men; these perpetrators were Ram Singh, the main accused bus driver (age 35); his brother,
Mukesh Singh (age 29); Vinay Sharma, an assistant gym instructor (age 18); Pawan Gupta, a
fruit seller (age 19); Akshay Thakur, unemployed (age 28), and Mohammed Afroz, a juvenile at
the time of the crime who was called “Raju” for anonymity (age 17). In an attempt to defend
Nirbhaya, her male companion was severely beaten up by the assailants, as well.
Three hours later, a Police Control Room (PCR) van picked up Nirbhaya’s naked body and her
injured friend lying under a flyover, and immediately rushed them to a hospital. While Nirbhaya
and her friend were in the hospital, three of the accused, including the principal suspect Ram
Singh, were arrested on December 17th. On the 18th, a fourth arrest was made. It took three
more days to arrest the juvenile and the final perpetrator, on December 21st.
It became known that the boy who had persuaded Nirbhaya to enter the bus was the one who
suggested to the others that they throw her and her friend’s naked bodies onto the street and run
them over. The male friend was given treatment and Nirbhaya underwent emergency surgery
after not only getting raped, but also having her intestines pulled out of her body. She was put on
a ventilator and was labeled as being in critical, but stable, condition. However, her health
drastically worsened; Nirbhaya suffered from internal bleeding and cardiac arrest, thus
prompting her transportation to Mount Elizabeth Hospital in Singapore on December 26th.
Physicians confirmed further internal bleeding and multiple-organ failure. Finally, in the early
hours of December 29th, Nirbhaya was pronounced dead as a result of multiple-organ failure.
73
Nirbhaya, meaning “fearless,” was the pseudonym given to Pandey by the media and public before her father
revealed her true identity because India’s rape laws protect the identity of the victim. This particular name was
chosen due to the victim’s background and willingness to live; the public also gave her the titles of “Damini”
(“lightning”), “Amanat” (“treasure”), and others.
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Would her death and suffering go in vain? Based on the immediate response, there seemed to be
a hope and will to change the violent culture in India and bring the issue of crimes against
women in India to the forefront of national political and social agendas, but the long-term effects
appear to be less apparent.
Immediately after news of the gang rape spread, protests erupted in Delhi and all over the
country. The public in Delhi was so ignited by the tragedy that police resorted to tear gas to
control the crowds. In the initial weeks, “Hang the rapists” was the vociferous cry of the Indian
media. Nothing less than capital punishment would assuage the collective horror and anger of the
populace. The incident became a global phenomenon within a matter of days. Celebrities were
compelled to take to their Facebook and Twitter accounts to voice their condemnation of the
attack, and started campaigns to end crimes against women on their own.
In the political sphere, two Commissions of Inquiry, the Justice Verma Committee and the Usha
Mehra Committee, were constituted as a direct consequence of the rape and subsequent outrage
about the incident, their purpose being to seek public opinion as to how the then-current anti-rape
laws should be amended. The Criminal Law (Amendment) Act 2013 was passed as a result of
the Verma Committee Report three months after the rape. This act encompasses over a dozen
amendments in different laws, including the Indian Penal Code, the Code of Criminal Procedure,
and the Indian Evidence Act. Moreover, the government launched the Nirbhaya Fund project
designed to ensure the safety of women using public transportation by setting up emergency
buttons, GPS technology, and CCTVs in major cities across the country.
Clearly, the response to this Delhi gang rape case was rare and unprecedented. Perhaps there was
a buildup of social tension that finally exploded when this rape happened. Perhaps it was the
sheer brutality of the event, but there were cases before and even shortly thereafter that were
equally appalling. For example, there was, in the following year, the horrific abduction and gang
rape of a five-year-old named Gudiya, who was kidnapped from a residential area in Delhi, kept
in a room for two days, and then raped repeatedly by two men. Similar to Nirbhaya’s case,
foreign objects were inserted into her body, producing infection; “surgeons took out three pieces
of candles and a 200 ml plastic hair-oil bottle from inside her”. Yet, with the exception of a
single protest, this story faded away in the media within a few weeks after the incident occurred.
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While it is terribly tragic that this disturbing event did not receive as much media coverage, it
may be due to the fact that in the Nirbhaya case, the victim left behind a diary called “The Story
of My Life” in which she chronicled her dreams and ambitions and embodied the ideals of the
modern-day Indian woman. She mentioned some of the normal aspirations she had, typical of
those of a young woman in an increasingly modernized India: the wish to own a Samsung
smartphone and a fancy car when she earned and saved up enough money. It was as if she, a
physiotherapist in training who was trying to break away from her economically depressed
background, was a reflection of the entire younger generation, and this truly resonated with the
people.
As aforementioned, similar cases have occurred in the past and even after the Nirbhaya case that
have simply blurred into history but the amplified reaction to December 16, 2012 is indeed an
outlier that needs to be reviewed. The gang rape in Delhi, India seemed to stop the country in its
tracks and became a dire signal for attention to the epidemic of crime against women in India.
The overwhelming response to this particular case was quite obvious and unprecedented.74
Four Year History of Nirbhaya Case
First Anniversary of Nirbhaya’s Death
Calendrical commemorations of Nirbhaya began on January 16, 2013—the one-month mark

75
after the night Jyoti was assaulted. Individuals gathered at Jantar Mantar
and Delhi University, where they produced art in protest of sexual violence in general, as well as
in demand of justice for this specific assault. In addition, a candlelight vigil was held, and
activists spoke out about the perceived inaction of the government in delivering justice following
the rape.76
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Lapsia, Tina P., "Impact of the “Nirbhaya” Rape Case: Isolated Phenomenon or Social Change?" (2015).Honors
Scholar Theses. 453. available at: http://digitalcommons.uconn.edu/srhonors_theses/453
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Jantar Mantar is an architectural landmark and common meeting place in Delhi.
76
One-Month Anniversary of Delhi Gang Rape," Economic Times, January 16 2013.
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A slideshow of images from the gathering published by The Economic Times showed activists
creating and holding posters that included phrases such as “Hang the Rapists,” “Kill the Killers
of Humanity,” “Freedom Without Fear,” and “A Month is Over...Justice is Still Awaited...” in
both Hindi and English. These slogans being sported on this date were strikingly similar—some
even identical—to those that emerged in the protests immediately following the attack. This
continuity demonstrates that a thread between the event, as a part of the past and relevant to the
present, remained intact at the one-month mark. Observers of the somber anniversary also held
illustrated images of nooses, women breaking free from chains, and women covering their faces,
among others. These images also recall those presented in the initial demonstrations, while
holding a decisively violent aesthetic quality, suggesting that anger at the specific assault, and
the society-wide problem of sexual violence that it has come to represent, was fervent at this
historical moment.
Another image portrayed a man who was fasting in protest lying down at the scene of the
commemoration, exemplifying the continued fight for justice and equality in light of the
Nirbhaya event. Only thirty days since the attack and barely two weeks since her death, the
memory of Jyoti herself, as well as her rape and its moral, social, and political implications, were
still fresh on the minds of Indians. Already, citizens were organizing to memorialize her and to
sustain the relevance of her assault by continuing to push political agendas in light of the event;
already, a tension was emerging between carving a place for the event in the past and
maintaining its relevance in the present and into the future.
Eleven months later, the anniversary of the first year since the assault was recognized both by the
Indian public and Jyoti’s family. Privately, her relatives held a religious ceremony in the village
in Uttar Pradesh from which they had migrated to Delhi. They explicitly told the press that they
hoped to “‘remember her in a quiet way, away from all the glare.’ 77 Meanwhile, the public
gathered at various locations around Delhi (such as Jantar Mantar, again) and India for
memorials and vigils in her honor. The Public commemorations of the Nirbhaya rape on its first
anniversary were similar in spirit and form—though perhaps greater in measure—to those of its
one-month marker.
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"India Marks First Anniversary of Gang-Rape Victims Death," ABC News, December 29 2013.
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In addition to lighting candles and saying prayers in her memory, most attendees also used the
occasion as a platform for expressing discontent regarding her specific case and nationwide
failure to improve social conditions surrounding gender and violence since the event. Many
protesters held signs and shouted slogans, just as they had in the days following the “Delhi
Gang-Rape” exactly one year prior, such as “To Deter Rape, Punish Those Who Blame Women
for Rape,” “Oppose Patriarchal Mindset,” “Fight Sexual Violence at Workplace,” and “Men Can
Stop Rape”.78
In comparison to the phrases shown at one-month commemorations, the ones chosen to express
the sentiments of the population at the one-year mark were more generalized. Rather than
addressing the specifics from the Nirbhaya case by suggesting the perpetrators be hanged and
asking for justice in direct response to that particular assault, at this moment the anniversary of
the attack was used as a platform for seeking justice for a nationwide (and worldwide) epidemic
of sexual violence. This reveals a transformation since the one-month anniversary in how the
general public (or at least those who opted to commemorate Jyoti’s life) associated with the
“Delhi Gang Rape,” temporally speaking. While the relevance of the event to the contemporary
moment remained clear, the presence of the specific rape was weaker; instead, the presence of
the wider social problem that the rape symbolized was stronger. As such, the event had receded
further into history by this point, although the link between the event and the present moment
certainly had not been severed.
Indeed, simply by the act of marking an anniversary—thereby crystallizing the occurrence of the
event as having happened exactly one year prior—Indian society demonstrated at least the
appearance (if not predominance) of a perspective on Nirbhaya as a part of the past. Yet,
according to Blustein, “commemoration is a kind of memorial that...can preserve the public
memory of the victims and raise moral consciousness about past abuses,” suggesting it can serve
as a useful tool for communal confrontation and reconciliation with evil events, without placing
them so deeply in the past that their meanings and lessons are lost.79 The collective actions of the
Indian public on the first anniversary of Nirbhaya’s rape, due to their balanced inclusion of both
somber memorializing and political lobbying, evoke this theory—that the gathering and
78
"1st Anniversary of Delhi Gang-Rape: India Remembers Nirbhaya," India Times, December 17 2013.
79
Blustein, "Forgiveness, Commemoration, and Restorative Justice: The Role of Moral Emotions," 586
84
performance of remembering by a community can serve to maintain, rather than dissolve, the
bridge between the past and the present.
Meira Kumar, the first female Speaker of the Lok Sabha, 80 was asked on this date if she
identified any changes—presumably with regard to gender equality and safety—since the “Delhi
Gang Rape.” She answered: "where the security of women is concerned, everything is still the
same,” using her platform as a high-ranking politician and the commemorative date to keep the
wider political issues raised by the assault against Jyoti at the front of public discourse.81 Though
of course not representative of the Indian government as a whole, Kumar’s statement
demonstrates that, one year after its occurrence, the “Delhi Gang Rape” still served as the most
salient reference point and catalyst for seeking change with regard to issues of gender equality
and safety in India. Because the widespread and institutionalized problems which it spawned
from, represented, and reminded us of had persisted, the event was remembered one year later
both with sadness to honor her passing, and with passion to make meaningful political and social
change.
Second Anniversary of Nirbhaya’s Death
The second anniversary of the assault was commemorated by Indian society in a manner similar
to the first. It included protests demanding punishment of the assaulters and implementation of
the JVC’s recommendations, as well as commemorative elements, such as candle-lighting
ceremonies and prayer, in honor of Jyoti’s death.82 At Jantar Mantar in Delhi, observers erected
placards showing phrases expressing discontent both with the Nirbhaya assault and with rape
culture in general, such as “Hang the Rapists,” “Rape Free India,” and “Police Reforms. 83” A
particularly poignant sign read “Dec 16: Keep Alight the Flame Against Sexual Violence, For
Women’s Fearless Freedom,” both explicitly referencing Jyoti Singh’s moniker by including the
80
The Lok Sabha is the Lower House of India’s Parliament.
81
Indrajit Kundu, "On First Death Anniversary of Delhi Gangrape Victim, Lok Sabha Speaker Meira Kumar Says
Nothing Has Changed in Indian Society," India Today, December 29 2013.
82
Staff Reporter, "Protest to Mark Anniversary of Nirbhaya," The Hindu, December 18 2014.
83
"People Remember Nirbhaya on Second Anniversary of December 16 Delhi Gang Rape Case,"
http://www.gettyimages.com/detail/news-photo/parents-of-nirbhaya-paying- tribute-to-their-daughter-during-news-
photo/460553058. Accessed February 2017
85
word “fearless,” and emphasizing the need to fight for gender equality and justice on the societal
level.
Thus, the actions of Delhites and other Indians at the two-year mark after the “Delhi Gang Rape”
bring to mind Bevernage’s suggestion to, “resist dualist thinking that forces us to choose
between restitution for historical injustices and struggle for justice in the present or future.”84
They performed memorializations that simultaneously honored her passing, sought punishment
for her assaulters, and asked for institutional changes to alleviate the larger social issue of which
the event was a marker. The tension between past and present, at this moment, was being pulled
strongly by each side: with double the time elapsed as the first anniversary, commemorations
demonstrated that, for the Indian public, the Nirbhaya event remained perhaps equally as
pertinent and meaningful to the present. Though decidedly a part of the city and country’s
history, at the two-year mark, the “Delhi Gang Rape” remained tied to the current moment.
The second anniversary of the “Delhi Gang Rape” also entailed peculiar reporting on the ways
some of the perpetrators of the assault were “remembering” the event. Allegedly, Vinay Sharma
and Pawan Gupta successfully managed to bring balloons and cake—prohibited items—into
Tihar Jail, which constituted part of their day of celebration for having “survived one more year
safely.”85
Once their celebration was discovered, jail officials removed the items, but the message rang
clear as to the assailants’ perspectives on the attack, its meaning, and its place in history. For
them, the anniversary was a reminder of their “night of fun” and continued evasion of the court-
issued death penalty. Her death did not merit memorialization or lobbying for change that would
limit their capacity to have a night of fun like that again. In a perverse sense, the event remained
close to the present for Gupta and Sharma; despite being behind bars, they remembered the date
and made deliberate (if illicit) efforts to mark it. Yet the emotional distance from which they
approached the event suggests that perhaps they also view it as a part of the past, and a part of
their pasts as free men.
84
Bevernage, "The Past Is Evil/Evil Is Past: On Retrospective Politics, Philosophy of History, and Temporal
Manichaeism," 336.
India TV News Desk, "Nirbhaya Rapists Celebrated 2nd Anniversary of 'Dec 16' in Tihar?," India TV News,
85
December 2 2014
86
With its second anniversary on the horizon, the event was also “remembered,” incidentally, when
news of a strikingly similar rape in Delhi evoked recollections of the tragedy that had struck in
2012. On December 5, 2014, shortly before the two-year mark since the “Delhi Gang Rape,”
another widely reported rape took place in a vehicle traversing the streets of Delhi. The survivor,
a twenty-five-year-old executive, identified her assaulter, Shiv Kumar Yadav, who was the
driver of an Uber she commissioned to take her to her from Vasant Vihar to her home in the
Inderlok area of Delhi.86 According to her statement in court, she fell asleep in the back of the
car and woke up to Yadav sitting beside her in the backseat. She began to protest, to which he
responded by slapping her repeatedly and threatening to make use of a rod—a detail that
inevitably brings to mind Jyoti’s rape (and almost certainly was intended as such). After Yadav
raped her, he drove her to her house, where she exited the Uber.
Once identified and taken into police custody, the accused was questioned in a special fast-track
court—one of many established in response to the Nirbhaya event. He told the Magistrate that
“he ‘did not commit the crime’ and that the case against him was false.87’ In the process of
handling this conviction, the court also discovered that the assailant had been involved in a rape
case in 2011. As a result, he was denied a police clearance certificate—required to get an all-
India taxi permit—in May 2014; he had then procured a fake certificate, at the price of 2,000
rupees, from another agent, Sunit Sharma, who was subsequently also arrested. 88 Once Yadav
was convicted for the crime, the president of Uber India, Amit Jain, spoke out in support of the
verdict, saying “‘sexual assault is a terrible crime and we're pleased he has now been brought to
justice,’” Jain promised to make changes to improve the safety of the ride service. 89 The Uber
case gained substantial publicity—though markedly less than that of Nirbhaya—due to its
haunting resemblance to Jyoti’s two years before, as well as its quick trial and conclusion. This
case of sexual violence evoked memories and political agendas related to the “Delhi Gang
Rape,” demonstrating that the link between past and present, in this instance, remained intact. It
suggested that, until such radical transformation occurred in this setting that no similar instances
86
Press Trust of India, "Uber Cab Rape Case: Victim Identifies Driver in Court," The Indian Express, January 15
2015.
87
Vibhuti Agrawal, "Delhi Uber Driver Accused of Rape Speaks in Court," The Wall Street Journal, February 3
2015
88
Ananya Bhardwaj, "'Rapist' Applied for Police All-Clear, Denied Due to 2011 Rape Charge," The Indian Express,
December 12 2014.
89
. "India Uber Driver Guilty of Rape," BBC, October 20 2015.
87
of rape would take place again, the assault against Nirbhaya would remain connected to the
present.
Jyoti’s father, Badri, spoke to the connection between the Uber Rape and his daughter’s death.
He questioned the success of the movements for equality and justice inspired and invigorated by
the assault of his daughter, citing this parallel instance of sexual violence as evidence that Delhi
remains unsafe for women. 90 ‘My pain increases every time I hear of another rape,’” he
disclosed, and while it is both logical and reassuring that Jyoti’s loved ones would recall the
tragedy upon news of any similar instance, it is significant that not only they, but the whole of
India, were struck with her memory when the story of the Uber Rape broke. Arguably, Jyoti’s
rape was easily recalled in reaction to the Uber Rape because of the persistent efforts to
memorialize and make history of her attack. In other words, the public and meaningful
commemorations and evocations of the Nirbhaya assault have made it easier to recall in future
cases of sexual violence. As such, it becomes an example of history and memory serving to
bridge the gap between past and present, rather than distance them from each other.
Third Anniversary of the Nirbhaya case
On the third anniversary of the “Delhi Gang Rape,” Jyoti was remembered and invoked
intentionally once again. Her family commemorated their daughter’s death, but this time in a
much more public fashion, using the moment to make political statements about the prolonged
status of the case against the assaulters, which is now on appeal and still awaits hearing in the
Supreme Court. “‘The rest of the four rapists should be hanged at the earliest,’” Jyoti’s father
stated, “we have been battling for justice for three long years.”91 They also attended citywide
commemorations of their daughter's death at Jantar Mantar, where the banned BBC
documentary, India’s Daughter, was screened as part of the ritual of commemoration.92
90
Betwa Sharma, "Nirbhaya's Father Says Delhi Has Not Changed 2 Years after Rape and Murder of His Daughter,"
The Huffington Post, December 16 2014.
91
Press Trust of India, "On Nirbhaya's Third Death Anniversary, Parents Want Rapists to Be Hanged," NDTV,
December 30 2015.
92
"3 Years of Nirbhaya Gang Rape: Delhi Govenrment to Help Juvenile Convict Set up Tailoring Shop," India
Today, December 16 2015.
88
At these sites of observations, signs were held saying, “Justice Delayed, Justice Denied,” and
“Hang the Rapists” (as we saw in the one-month anniversary), referencing the recent appeal of
the death penalty sentence set by the Delhi High Court.93 Because of the current context—the
verdict of the assaulters awaiting the final appeal in the Supreme Court, and juvenile’s
completion of his sentence—during this anniversary, attention returned to the specific assault
against Nirbhaya, with protestors and observers implying but not spotlighting the greater social
and cultural changes needed to mitigate sexual violence. As such, despite three years having
passed, the third anniversary (with the exception of the one-month memorialization) exhibited
the most intimate relationship between the assault and the present.
Yet, the commemorations were still characterized by the tension between fossilization of the
event through its rendering as history and revitalization of it through drawing ties to the present
context. While constructing the rape as part of the past by commemorating it, the participating
population consistently did so in conjunction with the undertaking of social, political, and legal
agendas in response to her assault and its memory. Their actions recall Blustein’s theory, that
“memories of wrongdoing, when sustained, provide the basis for the pursuit of...helping present
and future generations avoid a repetition of the earlier violence and injustice.”
To what extent they have succeeded, or will succeed, remains unclear, but an irrefutable link can
be observed between the Nirbhaya rape, memorializations of it, and continued fights for gender
equality and safety in India.
Certain Indian politicians joined the public in their commemorations; many addressed lingering
issues of gender inequality and sexual violence on this date by attending public events of
honoring and remembering, as well as by speaking publicly. Mamata Banerjee, Chief Minister of
West Bengal, utilized Twitter to express her sentiments, tweeting: “Remembering Nirbhaya on
third anniversary of brutal Delhi incident. We cannot compensate her loss but government must
stand by her family in every way.”94 Banerjee’s tweet sheds light on the various and nuanced
ways that Jyoti’s assault has been remembered. While conceding that justice for the rape and
murder of Jyoti Singh can never be fully achieved, Banerjee’s statement also urges people—
93
"Third Anniversary of Nirbhaya Gang-Rape," http://www.gettyimages.com/detail/news-photo/protestors-along-
with-the-mother-of-nirbhaya-taking-out-news-photo/501614536. Accessed March 2017.
94
"Can't Compensate Her Loss but Govt Must Stand by Family, Says Mamata on Delhi Gangrape Anniversary,"
First Post India, December 16 2015.
89
especially those in positions of power—to remember her, and ostensibly to act on that memory in
the direction of justice. Her message fits the theoretical paradigm that history cannot fulfill the
role of producing justice, certainly not retroactively, but that it can serve as a vehicle for
attaining some type of future justice.
The Nirbhaya attack was brought to the front of public consciousness again, not only by
intentional acts of commemoration, but also by the political issue of the juvenile assailant’s
release from custody, which took place on December 20, 2015. Having completed the maximum
time of service for a juvenile in a reform center, he was released and allegedly provided with a
financial grant—as well as a sewing machine, to the end of establishing a tailor shop—by Delhi
government’s department of Women and Child Development.95
This development, ill timed to align with the anniversary of the assault, generated frustration
among much of the Indian public and for Jyoti’s family in particular. They addressed a public
gathering of remembrance for their daughter at Jantar Mantar; her mother lamented, “‘on her
third anniversary, the culprit is being set free. Where is the justice in that? Does her sacrifice
deserve this, justice has been denied.’96 Her father added, “‘for us he is the killer of our daughter
who is being set free despite his heinous crime...We have failed in getting her justice, we have
tried but to no avail, maybe they will listen to you.’According to another report, the pair also
made the statement:
“‘With each passing day her memories get more intense. But we are not even able to face the
memories as we have failed to secure justice for her. And now there is no hope for justice!97
The coinciding of the juvenile’s release with the anniversary of his victim’s rape was not
overlooked by the Indian public, and certainly not by Jyoti’s family. Altogether, they expressed
anger that justice had not been served by inadequately punishing one of her attackers and
allowing him to live a free life after stripping her of her capacity to do the same. For many, his
release proved that justice was elusive, especially in the hands of the institutions in place. The
juvenile’s release pointed to the inextricability of past from present, of her rape from its
95
"3 Years of Nirbhaya Gang Rape: Delhi Govenrment to Help Juvenile Convict Set up Tailoring Shop.
96
Siddhanta Mishra, "Nirbhaya's Third Death Anniversary, Juvenile Culprit Being Set Free," The Indian Express,
December 16 2015.
97
"3 Years of Nirbhaya Gang Rape: Delhi Govenrment to Help Juvenile Convict Set up Tailoring Shop."
90
consequences, of one moment from another. As such, it points to scholar Eelco Runia’s theory of
historical presence, wherein “the past invades the present despite historians’ attempts to put it at
a distance. Far from being represented or reproduced in the present, the past manifests its
presence in the here and now.98 Even if the rape of Jyoti Singh belonged to history, the release of
the juvenile exemplified its entanglement with the present and, presumably, the future.
Fourth Anniversary of the Nirbhaya Case
‘Four years of “struggle” in vain, as Nirbhaya’s culprits are still alive,’ says Nirbhaya’s mother
on her 4th death anniversary. Four years ago, on this very day Nirbhaya, a physiotherapy student,
breathed her last on a hospital bed. She was brutally raped and murdered by six men in a private
bus in Delhi on December 16, 2012.
Shortly after her death, the overwhelming protests by the whole nation demanding ‘justice’ and
safety for women shook the country. Angered people raised questions about their sense of
security and propelled the powers-that-be react in meaningful ways to end this brutalisation of
women. The protesters made the nation come together — to protest, debate and introspect. But
what happened after that? Did Nirbhaya get ‘justice’? Even today, are women in India safe? So
much has happened in these four years, but neither have incidents of rape come down in the
country nor have the culprits been punished. Nirbhaya remains just in our memories to be
thought about on her death anniversary.
Though the protest about women’s safety in the country led the government to institute the
Justice Verma Committee, who could look into the ways that the country could improve the
dismal way in which women of the country are treated. Fast-track courts were set up for such
cases. But the prevention of such crimes and the conviction rate is poor. And so, hundreds of
women and girls like Nirbhaya, remain without ‘Justice’. Does the government and the system
needs constant protests to be reminded of the same thing again and again? The answer looks
obvious.99
98
Anita Kasabova, "Memory, Memorials, and Commemoration," History and Theory: Studies in the Philosophy of
History 47 (2008): 335
99
http://www.financialexpress.com/india-news/nirbhaya-4th-death-anniversary-mother-waiting-for-justice-says-
perpetrators-still-alive/489939/
91
The Juvenile Rapist of Nirbhaya
We all know the name of Nirbhaya (Jyoti Singh Pandey) and the five rapists that were involved
in the brutal crime that they had committed except the 6th. Yes, the 6th whose name was hidden
throughout. The police called him “Raju”, the media called him “Bhura” and we as a society
chose to address him as the juvenile rapist.
As mentioned widely on the social media platform the Juvenile’s name is Mohammad Afroz. He
is from Western UP (Badaun). He worked in certain East Delhi dhaaba. Afroz, in fact, was the
person who called Jyoti to the bus and even assaulted her male friend.
According to the reports, this juvenile raped Nirbhaya twice and was the one who had inserted
rod into her private parts. The insertion of rod caused some serious infections which destroyed
her intestine and eventually led to her death. However, being a Juvenile he was spared. Yes, just
because he was short of 6 months to 18.100
Details of the accused: How to try the juvenile?
On 25 December, Nirbhaya’s condition was termed critical. On the following day, she had a
cardiac arrest after which the Government decided to fly her to Singapore’s Mount Elizabeth
hospital in a last attempt to save her life. After being in a state of coma for three days, on 29
December, 2012, at 2:15 a.m., Nirbhaya succumbed to her injuries and breathed her last, leaving
the nation shell shocked.101 The Police now added murder to the charge of the six accused in
their FIR.
Among the six accused was 17-and-a-half-year-old juvenile—known as Raju—who worked odd
jobs at roadside eateries. Media reports claimed that Raju was the most dispossessed of them
all.102He had left home as a boy many years earlier. His father had become a vegetable after a
brick fell on his head and injured his brain. His mother could barely scrape together a living for
100
http://nationalviews.com/about-mohammad-afroz-juvenile-rapist-nirbhaya-facts-details-name
101
Zee media bureau, December 16 gang rape case Timeline, Zee News, 10 September, 2013, Source:
http://zeenews.india.com/news/nation/december-16-delhi-gang-rape-case-timeline_875409.html
102
Shoma Chaudhury, The girl who fired an outcry in India, The Daily Beast, 3 April, 2013, Source:
http://www.thedailybeast.com/newsweek/2013/04/01/nirbhaya-the-woman-who-ignited-a-fire-in-india.html
92
her children, living under plastic sheets yoked together. Raju used to send 600 rupees twice a
year to her. For a few years, he had not done even that. Today, she couldn’t afford the ride to the
city to meet her son.
After he left home, Raju worked odd jobs for years at dhabas, India’s ubiquitous roadside
eateries, mostly washing dirty plates. The media had a telling story to tell about Raju’s thwarted
ambitions:
One of his employers was fond of him and found him to be a very efficient worker. Raju came to
him abruptly one day and asked to be made a manager of the eatery; he could not bear to wash
another dirty dish ever again in his life, he said. Unable to make him a manager, but wanting to
keep him, the manager raised his salary by 1,000 rupees a month to do the same job. The next
morning the boy had packed his bag and gone. He did not even take his last salary. For a couple
of years, there was no news of him.
And then came the headlines about that demonic night. Among the six of them, it was Raju who
had suggested they push a rusted iron rod inside her all the way up her diaphragm ripping her
intestine. An intestine is 23 feet long. Barely 5% of it was left intact. The doctors who treated her
said they’d never seen a rape victim so brutalised.
The public protests had reached new heights after Raju’s heinous crime was disclosed by the
police. Nirbhaya’s parents and the youth roared with rage demanding that all six accused be
given the death sentence. Several television channels also campaigned for death penalty for all
the rapists and that the juvenile, in light of the brutality of the crime perpetrated, be tried as an
adult, to set fear in the hearts of all rapists.
According to India’s Juvenile Justice Act (JJA), a guilty juvenile, up to the age of 18, cannot
subject to imprisonment in the adult justice system but instead will be subject to
advice/admonition, counselling, community service, payment of a fine or, at the most, be sent to
a remand home for three years, after which he would roam the streets as a free man.103
The JJ Act was passed in 2000 with the purpose of incorporating into domestic law India’s
obligations under international law as a signatory of the U.N. Convention on the Rights of the
103
Aanchal Bansal, When a juvenile rapes, OPEN Magazine, 9 March, 2013, Source:
http://www.openthemagazine.com/article/nation/when-a-juvenile-rapes
93
Child of 1989, the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985)
(known as the “Beijing Rules”) and the U.N. Rules for the Protection of Juveniles Deprived of
their Liberty (1990). Underlying these international texts was the legal principle that juveniles
lacked the physical and mental maturity to take responsibility for their crimes, and because their
character is not fully developed, they still have the possibility of being rehabilitated.104
The Verma committee also found scientific evidence of neurological changes that occurred
between 16 and 18 years of age. The ego state usually crystallised at 18, justifying why
adulthood is pegged at 18. The reason why boys were allowed to marry only at 21 or one was
allowed to vote only at 18 was because of the need for cognitive maturity for all these. Sexual
immaturity was part of the overall immaturity of a juvenile. Gopal Subramaniam, one of the co-
panellists of the Verma panel suggested they looked at Indian boys, not from the elites, and tried
to see if they have got the best that society has to offer. “The ability to judge does not come
naturally. It is a skill that has to be taught by peers at school. Then you find poverty, lack of
nutrition and direction – situations in which the adult ego state, which processes value systems,
is missing. Few people know that lack of direction can cause depression. Have we as a society
done our best for the less privileged so we can say everybody deserves a fair chance and the age
of adulthood should be reduced to 16?” asked Subramaniam.105
Since the December gang rape, Delhi had seen six petitions – one by Janata Party president
Subramanian Swamy – filed in various courts that sought to challenge the age bar set for trying
juvenile offenders and draw “gravity of the crime” into focus as a key determinant of the
punishment due. 106 Civil society and several lawyers were of the opinion that the interest in
protection of juveniles had to be balanced with the interest of protecting particularly vulnerable
members of society from violent crimes committed by persons under 18 years of age and
amending the law when societal conditions changed over time.
104
Aparna Viswanathan, Balancing the Juvenile Act, The Hindu, 9 September, 2013, Source:
http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece
105
Revati Laul, Gopal Subramaniam Interview, Tehelka, 9 February, 2013, Source: http://www.tehelka.com/the-
verma-panel-report-is-a-blueprint-for-transforming-society-it-is-a-blueprint-for-equality/
106
94
A look at the NCRB statistics relating to violent crimes by juveniles against women were
troubling. The number of rapes committed by juveniles had more than doubled over the past
decade from 399 rapes in 2001 to 858 rapes in 2010. The total number of rapes committed by
juveniles had more than doubled from 485 in 2002 to 1149 in 2011. Between 2011 and 2012
alone, there was a massive increase in instances of rape by juveniles by nearly 300, which was
almost as much as the increase in such cases over the entire previous decade.
Several other countries such as the U.S. and the U.K., which were both signatories to the U.N.
Convention, had also faced an increase in violent crimes by juveniles. They had chosen to act
tough. In most U.S. States, the jurisdiction of juvenile courts was automatically waived when a
juvenile above a certain age, usually 13 or 15 years, committed a violent or other serious crime,
and the case was automatically transferred to an adult court. A certification hearing took place in
which an adult court prosecutor was required to convince the adult court that the case should be
transferred. The juvenile was entitled an attorney at the hearing to present any evidence which
stood against the transfer. For example, in Indiana, South Dakota and Vermont, children as
young as 10 years, could be tried as adults.
According to an assessment by Manav Foundation on 170 juvenile boys who were counselled
over the past six months, 56% had disturbed family backgrounds. Children from broken or
dysfunctional families often display weak cognitive development.107
According to Anant Asthana, a lawyer who frequently represented juveniles at Board hearings,
socio-economic factors play a significant role in delinquency. “The distress, tension and chaos
that exist in dysfunctional and abusive families affect the behaviour of children,” he says.
Delinquency afflicts urban-industrial societies the most. In reaction to the police claim that the
juvenile was ‘the most brutal’ of the lot, Asthana said it was a “brutal” child who was most in
need of help.
107
95
Was He Really Reformed?
The counselor who met him from the start till the end stated that the boy never showed any
remorse. He, in fact, narrated how he had convinced Nirbhaya to board the bus and the details of
his role in the crime without much grilling. Shockingly, he also told the counselor that before
Nirbhaya he also tried to convince another girl but failed as she took an auto. For
Mohammad Afroz the brutalizing was all about proving his manhood.
Moreover, according to the counsellor, Mohammad Afroz has become a street smart person who
knows how to use the system. This is precisely the reason why he never put his demand in front
of the counselor or other officers but in the court as he knew the court would agree to those
requests. The counselor maintained that everybody involved in the case to reform him failed.
And now that he is out, what is the guarantee that he will not commit crime again.
The counselor maintained that everybody involved in the case to reform him failed. And now that
he is out what is the guarantee that he will not commit a crime again – especially when he knows
that there is an escape from it?108
Recommendations of Justice Verma Committee Report On Criminal Law

Amendments Act, 2013
On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief
Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law
so as to provide for quicker trial and enhanced punishment for criminals accused of committing
sexual assault against women. The other members on the Committee were Justice Leila Seth,
former judge of the High Court and Gopal Subramanium, former Solicitor General of India.
The Committee submitted its report on January 23, 2013. It made recommendations on laws
related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of
victims, police, electoral and educational reforms. A summary of their recommendations is:109
108
109
Source:http://www.prsindia.org/administrator/uploads/general/1359132636~~Justice%20Verma%20Committee%
20 Report%20Summary.pdf
96
Rape: The Committee recommended that the gradation of sexual offences should be retained in
the Indian Penal Code, 1860 (IPC).
The Committee was of the view that rape and sexual assault are not merely crimes of passion but
an expression of power. Rape should be retained as a separate offence and it should not be
limited to penetration of the vagina, mouth or anus. Any non- consensual penetration of a sexual
nature should be included in the definition of rape.
The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual
intercourse without consent is prohibited. However, an exception to the offence of rape exists in
relation to un-consented sexual intercourse by a husband upon a wife. The Committee
recommended that the exception to marital rape should be removed. Marriage should not be
considered as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about
whether the complainant consented to the sexual activity, the relationship between the victim and
the accused should not be relevant.
Sexual assault: Currently, “assault or use of criminal force to a woman with the intent to
outrage her modesty” is punishable under Section 354 of the IPC with 2 years imprisonment.
The term outraging the modesty of a woman is not defined in the IPC. Thus, where penetration
cannot be proved, the offence is categorized as defined under Section 354 of the IPC.
The Committee recommended that non-penetrative forms of sexual contact should be regarded as
sexual assault. The offence of sexual assault should be defined so as to include all forms of non-
consensual non-penetrative touching of a sexual nature. The sexual nature of an act should be
determined on the basis of the circumstances. Sexual gratification as a motive for the act should
not be prerequisite for proving the offence. The offence should be punishable with 5 years of
imprisonment, or fine, or both.
Use of criminal force to disrobe a woman should be punishable with 3 to 7 years of

imprisonment.
Verbal sexual assault: At present, use of words or gestures to “insult a woman’s modesty” is
punishable with 1 year of imprisonment or fine or both under Section 509 of the IPC. This
section should be repealed. The Committee has suggested that use of words, acts or gestures that
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create an unwelcome threat of a sexual nature should be termed as sexual assault and be
punishable for 1 year imprisonment or fine or both.
Sexual harassment: Some of the key recommendations made by the Committee on the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that bill
has become an Act now and is provided below:
 Domestic workers should be included within the purview of the Bill.
 Under the Bill the complainant and the respondent are first required to attempt
conciliation. This is contrary to the Supreme Court judgment in Vishakha vs. State of
Rajasthan110 which aimed to secure a safe workplace to women.
 The employer should pay compensation to the woman who has suffered sexual
harassment.
 The Bill requires the employer to institute an internal complaints committee to which
complaints must be filed. Such an internal committee defeats the purpose of the Bill and
instead, there should be an Employment Tribunal to receive and adjudicate all
complaints.
Offences against women in conflict areas: The continuance of Armed Forces (Special Powers)
Act (AFSPA) in conflict areas needs to be revisited. At present, the AFSPA requires a sanction
by the central government for initiating prosecution against armed forces personnel. The
Committee has recommended that the requirement of sanction for prosecution of armed forces
personnel should be specifically excluded when a sexual offence is alleged. Complainants of
sexual violence must be afforded witness protection. Special commissioners should be appointed
in conflict areas to monitor and prosecute for sexual offences. Training of armed personnel
should be reoriented to emphasise strict observance of orders in this regard by armed personnel.
Punishment for Crimes against Women: The Committee rejected the proposal for chemical
castration as it fails to treat the social foundations of rape. It opined that death penalty should
not be awarded for the offence of rape as there was considerable evidence that death penalty was
not a deterrence to serious crimes. It recommended life imprisonment for rape.
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AIR 1997 SC 3011
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Medical Examination of a Rape Victim: The Committee has recommended the discontinuation
of the two-finger test which is conducted to determine the laxity of the vaginal muscles. The
Supreme Court has through various judgments held that the two-finger test must not be
conducted and that the previous sexual experience of the victim should not be relied upon for
determining the consent or quality of consent given by the victim.
Police Reforms: The Committee has recommended certain steps to reform the police. These
include establishment of State Security Commissions to ensure that state governments do not
exercise influence on the state police. Such Commissions should be headed by the Chief
Minister or the Home Minister of the state. The Commission would lay down broad policy
guidelines so that the Police acts according to the law. A Police Establishment Board should be
established to decide all transfers, postings and promotions of officers. Director General of
Police and Inspector General of Police should have a minimum tenure of 2 years.
Reforms in management of cases related to crime against women:
 A Rape Crisis Cell should be set up. The Cell should be immediately notified when an
FIR in relation to sexual assault is made. The Cell must provide legal assistance to the
victim.
 All police stations should have CCTVs at the entrance and in the questioning room.
 A complainant should be able to file FIRs online.
 Police officers should be duty bound to assist victims of sexual offences irrespective of
the crime’s jurisdiction.
 Members of the public who help the victims should not be treated as wrong doers.
 The police should be trained to deal with sexual offences appropriately.
 Number of police personnel should be increased. Community policing should be

developed by providing training to volunteers.
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Role of Mainstream Media and Social Media
16 Dec 2012, a 23 old girl was raped and brutalized badly by 4 persons in moving bus and was
thrown out naked in south Delhi near palam. Compared to other rape cases this case was
highlighted the most though at very same time many other rape cases came forward but they
didn’t make up their places on the front page of newspaper or in the breaking news of channel.
Media played a very crucial role in NIRBHAYA case. Every media house had its own angle
while covering the case, depending on their target audience. Some wanted to cover the news for
the TRP while very few wanted to awake the country citizens by their news. Few news channel
and newspapers did not cover the story for next 2 days while few come up with the news in
couple of hours.
As always government was neutral in this case too like many other rape cases. But, alike from
many other rape cases finally this one helps amending a lot in certain sections and articles, this
includes anti rape bill. Fast track court was set by government for fast decision. Even
government financially supported the victim’s family. The Ex- Chief Minister of Uttar Pradesh,
Akhilesh Yadav , announced a package of financial assistance 2 million to the family of the
woman and offered a government job to a family member . A cabinet meeting presided by Chief
Minister of Delhi, Sheila Dixit, decided to provide financial aid of 1.5 million and a government
job to one member of family. Many police officers who worked irresponsibly were suspended by
the government.
Zee news
Zee news was the first news channel who telecast the interview of male friend who accompanied
the girl that night. But after duro investigation it was clear that Zee news did not cover
this terrifying news for next 2 days. The official website dated before 19 dec 2012 shows no
clue of NIRBHAYA case or delhi gang rape.
So, the question arises what zee news was actually trying to prove with the first telecast of
NIRBHAYA’s friend interview. Did the channel was actually concerned about the rape case and
want to explore more facts and reality by telecasting the interview or it was just a matter of
gaining TRP .
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After personal investigation it was clear that the telecast of boy’s interview , amanat was not a
matter of concerned or for awaking the citizens with the reality or facts. This is clearly
understood as channel does not come up with any relevant news before 19 dec 2013. Another
reason for this interview might be for rebuilding its image after 100 Cr scandal which occur few
days earlier the rape case. This time was the best For ZEE news to regain its corrupted image.
Simply, gaining highest TRP can also be one of the reason behind it. Because at that time every
one was keen to know the reality so amanat’s or boy’s interview was the best to telecast.
The Hindu
In The Hindu , news made the place on cover page. on the very first day there were four news
on its cover page but as the days passed the news shifted its place from cover page to second
page than on fourth page.
Finally, it reaches on last page and like this there were no news covered by THE HINDU after
26th dec 2012. The news constistently keep on changing its place from front page to last and
finally it disaapear on 27 dec 2012. After 27 dec 2012 the news again come up when the victim
was flown to Singapore for her treatment. And when atlast she lost her last breath in Singapore
media rose their temperature and again the flame catches new fire and this time it was brighter
than the last but as expected flame turned off.
On 20th dec 2012 the same newspaper, THE HINDU reported another rape case of a 8 year old
girl in saharsa district of bihar. Th girl was allegedly raped and murdered. The body was found in
a canal on 18 dec 2012 morning, a day after she went missing from home. The incident took
place in the remote village of Belwara Punarwas, situated at a distance from the Kosi river. The
child was from the Paswan community and belonged to a family of labourers.
The penury in this case could be seen clearly as the victim assaulted was 8 year girl old child but
still this news was not successful in making its place on cover page. Neither it catches limelight
of other newspaper or news channels. Even THE HINDU did not even come up with some
relevant news with it.
There could be many reasons for not catching any attention.
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1. Just because it was not commited in delhi or NCR ( national capital region ) rather than a
small village in bihar.
2. The 8 year old girl was from dalit group and her father was a labourer and was not
financially stable to pay the cops for seeking justice.
The victim’s uncle said no top official had come to visit the family. “Only one inspector came to
investigate. If someone is raped in Delhi, the nation is outraged. If someone is raped here, no one
knows about it.”111
Role of Government
As always government role was very uneven. Though it pretended a lot to be fair in this case.
Many new laws were made and few were amended. The culprits were prisoned but again no
decision was made. Like other cases it too went in pending files. Five Fast track court were also
set by delhi government for rape and sexual harassment cases. Even government supported the
girls family financially. A handsome amount was given to her family but is this all enough
insuring the justice.
Rahul kanwal , chief editor of headlines today tweeted that “ including Rahul Gandhi around 350
MP’s were missing in action when lok sabha passed anti rape bill. Shows how much our MP’s
care for NIRBHAYA.”
On one side government pretends to be so caring for girls after this case but when anti rape bill
was actually passing that day 350 MP’s including Rahul Gandhi was not present. He did not
even gave it a thought of presenting dere on this important day when finally something was
happening in a favour of girls.
This was the crucial role which our government or our MP’s played.
“we will keep alive bravery of our brave daughter if we perpetuate the day as ‘ NIRBHAYA
DIWAS. Fearless to report , record, investigate & punish” tweeted social activist kiran bedi. She
demands NIRBHAY DIWAS in memory of jyoti pandey or NIRBHAYA , victim of delhi gang
rape. In her interview with zee news she clearly says that every single person of police either
111
http://mahakchaudhary1992.blogspot.in/
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constable or DCP,SSP should commit to people that they take the responsibility of inquiry
of their complains. People should not afraid anymore for complaining against the crime, that day
only politicians will come to know how many cases are not yet being reported. After this step
government will get to know how much girls were in fear that they do not report for the crimes
that took place with them.
This case in Delhi had shocked the nation and became the focus of television, newspapers and
online media coverage. For the first time, the Indian media had made a concerted effort to bring
this issue to the forefront of the national agenda. Media also adopted rightly pointed philosophy
for Democracy by PM Mr.Narendra Modi “development is possible only with people's
participation. What our country needs is institutionalizing of ideas. The people don't need ACTS,
they need ACTION. ”And hence it could change the definition of democracy from just being “of,
for and by the people” to “of, for, by and with the people”. Media is almost like the backbone of
the Indian democracy. The roots of media can be traced back to the times of the Nationalist
Movement in India. Ever since those times, media has been a crucial role in guaranteeing the
citizens their rights and liberties. Besides playing these important roles, media has evolved as a
much needed agent of change in the society. All over the world, the impact of media and social
media has been witnessed in recent years, with online platforms becoming increasingly powerful
mechanisms for mobilizing popular support. Voice of Media India is no exception, and the media
coverage of this particularly horrific case and the online response had applied pressure to the
authorities to deliver justice as soon as possible. Mindsets had been changed and it seemed that
people are no longer willing to accept rape and sexual assault as “a simple fact of life.” People in
India started demanding change, and they are harnessing the power of modern media to make
their voices heard. In a way media has been successful in bringing the change in the mindset of
the people for better. But good intentions and constructive efforts of media in this case were
diluted by sunken Indian Judiciary. Till now investigative journalism came into focus during the
murder of Delhi model Jessica Lal by Manu Sharma, Anna Hazare when protested against
corruption in the society. Above highlighted case is perhaps among the most prominent cases of
media interference seeking justice as a new dimension 'participative journalism' was innovated to
protect democracy and society. Henceforth media has helped to form public opinion and has
been quite successful in this role. There are a number of newspapers, magazines and local TV
station with rich history. Hindi print media fraternity is one of the oldest, reputed and pioneer of
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media. Now the geographical boundaries are not limited, every media is making its mark on
national scene because of its quality journalism & technical excellence. Media has successfully
instituted norms of credibility and truthfulness for an ideal medium, focused at unbiased and
non-prejudiced reporting. Media is focused on how to reach a larger base of people .Media now
has to its credit some great innovations. It is very similar to what Mc-Donalds do to its menu in
every region 'cater to the taste of people there'. Media prospers on the back of excellent editorial
content - fair reporting and quality printing and believes in the core values of credibility,
integrity, innovativeness, entrepreneurial respect and appreciation. Since last 10 years many
media houses have assumed the role of an opinion maker and creator of public opinion as one of
the CSR Philosophy. They have not left a single stone unturned in the 16/12/2012, Damini case.
All Media were keeping track of each and every happening in the Damini case also it gave path
to the anger of youth in the city.112
'PUBLIC OPINION' is taken on any issue by almost all media houses and the procedure of
converting public opinion into decision making which is quite unique in itself has been adopted.
First the research team takes appointment with policy makers, state ministers, central ministers
and various politicians in the power and opposition. It takes their stand on a particular issue, and
then onwards it seeks public opinion on the same issue. It does not mean that it is simply a
mediator but it crucially controls the sentiments of people and even does correction in public
opinion .As a result, it has compelled government and the judiciary system to consider public
opinion in decision making. The response to the recent horrific gang-rape and murder case has
highlighted the power of media to stimulate debate and change attitudes. The police and the law
were pressurized by the media and the people for a fast-track verdict. Protests, both silent and
candle-lit, sent out messages of contempt for the victim's family and pressure on the Indian
Judiciary. In the above stated case, media interference dramatically changed the course of the
case. The intervention of media was very much desired as media helped the case to be
highlighted as an example of gross injustice. Media unveiled the corrupt Indian system and the
level to which they favoured those with power and money. The mass protests that it sparked
resulted in some serious amendments in the Indian judiciary system. From then media conceived
112
Dr. Shefali Tiwari.Media Efforts Flushed by Sunken Judiciary: Damini Case Juvenile Verdict, Pacific Business
Review International Volume 6, Issue 5, November 2013 available at www.pbr.co.in
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the role of protecting democracy from miscarriage. Sunken Judiciary On one hand media of the
country was rising high in the way that it was fully exploiting their strength, but juvenile verdict
given by Juvenile Justice Board (as Supreme Court allowed JJB to deliver its verdict) on August
31'2013, shattered everything. Because of media's effort whole country was talking about the age
of juvenile to be reduced so that the accused would be aptly punished. But that wasn't done
because of many technical issues which were linked with decreasing the age of minor. Media
was altogether fulfilling its social responsibility with full credit. Nine months long efforts of
media were diluted as the judiciary verdict came in. The verdict was as follows:- In the first
conviction held on December 16 gangrape case, the juvenile accused was found guilty of murder
and rape of the 23- year-old girl but he got away with a maximum of three years imprisonment
mandated under the juvenile law. The juvenile who was six months short of 18 years—the age of
majority—was, however, acquitted by the Juvenile Justice Board of attempt to murder of the
paramedic's male friend, who was the sole eye witness to the dastardly incident that shook the
nation. The Board, presided over by Principal Magistrate Geetanjali Goel sentenced the minor to
three years in a probation home, the maximum punishment that can be awarded under the
Juvenile Justice Act. The eight months already spent by the juvenile in custody during the
inquiry will be considered as period already served and would be deducted from the three years
sentence. And hence Damini gangrape case, which had the caliber of bringing in some life in our
stale and buried judiciary, only remained the tale of a helpless daughter of India.113
Case Verdict & Present Status
The prime accused in the case, Ram Singh was found hanging in his cell at Tihar Jail. Two days
after the Delhi high court confirmed the death penalty awarded to 4 convicts for brutal gang-
rape-cum murder of Nirbhaya. Another accused, a juvenile at the time of the crime, was
convicted and sentenced to three years in a reformation home, from which he was released in
December last year.
The four convicts in the case — Mukesh, Pawan, Akshay and Vinay — whose death sentence by
a trial court were upheld by the Delhi High Court in 2013 have appealed in the Supreme
113
Dr. Shefali Tiwari.Media Efforts Flushed by Sunken Judiciary: Damini Case Juvenile Verdict, Pacific Business
Review International Volume 6, Issue 5, November 2013 available at www.pbr.co.in
105
Court against the verdict. On 5th May 2017 the Supreme Court also upholds the death sentence of
all the four convicts. The execution of all the four convicts is now almost certain, and the only
recourse left to the convicts is a mercy petition to the President of India.
What Supreme Court said
“It’s a tsunami of shock in the minds of the collective and destroyed humanity. Death for all
four. Aggravating circumstances outweigh mitigating circumstances.” Justice Bhanumathi
added her concurrent judgment by saying, “If at all a case warrants death sentence, it’s this.
Human lust was allowed to take demonic form.”
Thus the Supreme Court concurred by the decisions reached by the fast-track court (on
September 13, 2013) and Delhi High Court (on January 3, 2014), upholding death sentence for
all the adult convicts.
“The accused were obsessed about ravishing her life, she was treated as an object of enjoyment,”
the SC judges said, thus underlining how rape becomes an exercise of brute power over the
victim. However, the judgment could have been worded better as terms like “ravishment” and
“human lust” are themselves couched in skewed patriarchal power structures, and mustn’t be
used to give out a verdict as important as in this case.
Public Opinion On Nirbhaya Case
What was novel about Nirbhaya’s case was the nationwide, as well as international, attention it
received in the new age of social media, compelling politicians and civil society alike to
deliberate over a previously underreported issue. As protests from the civil society gained
momentum after the incident, a number of controversial and derogatory remarks made by
highranking officials and politicians convinced the public that a deeper interrogation of social
norms and existing attitudes was required. Former Prime Minister Manmohan Singh’s theek hai
(“it is okay”) comment in response to the Nirbhaya rape elicited deep criticism from the public
for trivializing the issue. Andhra Pradesh Congress president Botsa Satyanarayana evoked fury
in the people after describing the Delhi gang rape as a “small incident,” and saying that women
should not go out during late hours. Meanwhile, Congress MP (member of parliament) Abhijit
Mukherjee also caused outrage with his derogatory reference to female protestors in Delhi.
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“They are dented and painted women chasing two minutes on fame, giving interviews on TV,”
Mukherjee told a news channel in Kolkata shortly after the incident.
Mukherjee’s comments were slammed by many fellow MPs, disowned by his sister and later
apologized for by Mukherjee himself, but not before the Shiv Sena, an extremist Hindu party,
supported his statement, saying that he had merely said what most Indian men were thinking
anyway, only his timing had been wrong. Other examples of victim blaming remarks are of the
leader of a caste panchayat in Haryana who declared that most rapes were fabricated anyway; the
elected Rajasthani member of the BJP party who called for a ban on skirts as a part of school
uniforms as it attracted “sharp and dirty glances and lewd comments”; and the opinion expressed
by Khushwant Singh, one of India’s leading writers, that rape had to be understood as the
inability by men to control their libido so that they took their lust out on unwilling women
It is not only men who have subscribed to these misogynistic views; women too, many of them
in elected office, have also expressed them. According to Mamata Banjerjee, Chief Minister of
West Bengal, “rapes are happening because men and women are interacting too freely.”
Regarding a woman who accepted a ride home from a pub in Calcutta and was then raped at
gunpoint by five men, Kakoli Ghosh Dastidar, party leader in West Bengal, said, “That was not a
rape; that was a deal gone wrong.” Sheila Dixit, former Chief Minister of Delhi, once said that a
female journalist who was murdered in Delhi should not have been so “adventurous” as to be out
alone at night. If these political leaders were representatives of the people, why were people
suddenly so furious at their remarks? 114
India’s Daughter: A Documentary On Nirbhaya Case
Since the writing of the last draft of this paper, there has been an interesting development in the
lasting impact the Nirbhaya rape case has had on the Indian populace. In March 2015, BBC as a
part of its ongoing Storyville series released a documentary titled India’s Daughter. This one-
hour film, which was directed, produced, and written by Leslee Udwin, is entirely about the 2012
Delhi gang rape case; more specifically, it largely comprises of eye-opening, and sometimes
114
Lapsia, Tina P., "Impact of the “Nirbhaya” Rape Case: Isolated Phenomenon or Social Change?" (2015).
Honors Scholar Theses. 453, available at: http://digitalcommons.uconn.edu/srhonors_theses/453
107
shocking, interviews with the perpetrators, their families, Nirbhaya’s family and friends,
government officials, and NGO leaders.
Unsurprisingly, the film and its content have caused a massive controversy in India and around
the world. India’s Daughter was scheduled to be broadcasted on TV on March 8, International
Women’s Day, but news leaked earlier in the month that the documentary contained disturbing
footage of an interview with Mukesh Singh, one of the rapists. This prompted the Indian
government to block the broadcast, but it was still shown in the UK on March 4 and uploaded to
YouTube on the same day. Once again, the Indian government directed YouTube to block the
video in India, and since then, BBC has completely taken the video off of this website. However,
the film has found its way through various social media outlets and its message continues to be
debated by activists, politicians, and sexual abuse survivors around the world.
Why was an important film that retells the story of such a horrible, yet inspiring, tragedy been
banned in the one country that needs its population to see it the most? The answer lies in the fact
that central to India’s Daughter is an interview in Tihar jail, Delhi with Mukesh Singh, the driver
of the bus in the Delhi gang rape. His comments regarding the case and the act of rape itself
explicitly reflect the traditional misogynistic views inherent in Indian society along with the
practice of victim blaming. At one point he stated, “You can’t clap with one hand – it takes two
hands. A decent girl won’t roam around at night. A girl is more responsible for rape than a
boy…about 20% of girls are good.” In an explanation of why he and his fellow rapists caused so
much other physical harm to Nirbhaya, Singh said, “She should just be silent and allow the rape.
Then they would have dropped her off after ‘doing her’ and only hit the boy.” This is appalling
considering he and three of his accomplices are on death row, and yet, he has not exhibited
remorse for what he did.
Shockingly, other men featured in the film, including lawyers, mirror these views or exemplify
how there is a stigma around rape culture. “We have the best culture. In our culture, there is no
place for a woman,” affirmed ML Sharma, defense lawyer for the men convicted of Jyoti Singh’s
rape and murder. A second defense lawyer, AP Singh, admitted that if his daughter or sister
“engaged in pre-marital activities…in front of my entire family, I would put petrol on her and set
her alight.” Raj Kumar, the patrolman who found the victim and her male friend lying naked on
the side of the road after the incident, said that despite his repeated pleas for help, no one stopped
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to help him get the couple to the hospital even though around thirty-five people passed by the
area. Such harrowing statements, especially by individuals who are supposed to promote justice,
and lack of action by bystanders reaffirm the notion that collective attitudinal change regarding
violence against women has not occurred across all levels in society.
The Indian government has almost seemed to accept this backward thinking by hindering
individuals from learning about the facts of the case and about the rape crisis in India. A
statement from the Home Minister’s office cited, among other reasons, that clips from the film
“appear to encourage and incite violence against women.” Other politicians claimed India’s
Daughter is "an attempt to defame India" and an "international conspiracy”. Not only is this
troubling because it violates the very basic freedom of free speech in the world’s largest
democracy, but also because it reiterates the unfortunate fact that the government is not doing
enough to address the matter.
After the December 2012 attack on Jyoti Singh, rape became a topic of daily conversation in
India, which was a reassuring sign that there was increased awareness about the issue. This
spoke well of Indians — it was a conversation most people needed to have due to reverse the
patriarchal, sexist, and troubling views on women, men and gender roles, and to eradicate the
culture of modesty and shame for women. “India’s Daughter” is forcing that conversation again,
and that can only be positive. Let us hope that India has not taken a step backwards in its effort
of combating the widespread problem of violence against women in its borders.
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CHAPTER- 5
110
THE NIRBHAYA CASE & IT'S AFTERMATH
India is passing through a very turbulent phase with regard to women security and cases of rapes,
sexual assaults, acid attacks are on the rise on a daily basis. One of the major reasons that have
been attributed to the rise of these crimes has been the increased number of unemployed youths
who take to crime. The rise in the number of sexual crimes is supported by empirical data. The
National Crime Records Bureau in its data has shown that the crimes have seen a gradual
increase. It has seen a massive jump from 2,487 in 1997 to 24,206 in 2011 which is an increase
of 873%115.
This increase can be explained by two factors in my opinion. One, there is an increased
awareness about the crimes and hence the feeling that these crimes should not go unreported has
percolated in the society. This is a very important point because in India Sexual Crimes always
had this character of social stigma attached to it. This meant that the victims would not take the
matter to the relevant authorities and thus these crimes would go unreported. The long tedious
process of seeking justice also played an important role in this behavior of the victim in not
reporting the crimes. The second reason which explains the increased percentage is that the
crimes have actually increased in number. This can also blamed on not having effective
deterrence due to a lax implementation of the prevalent laws which can be argued to be
comprehensive. Sociological conditions such as illiteracy, unemployment and gender
insensitivity among the youth can be attributed to the increased crimes against women. The
alarming situation is that despite the nationwide outrage, the crimes against women have only
been increasing which suggests that there is something seriously wrong with our legal system
when it comes to the prosecution and punishment of the perpetrators of these crimes. Also the
society should sensitise itself to the plight of the victims. In our country it is commonly seen that
rape victims are not treated well by the society and some people go to the extent of blaming the
rape on the victim. So not only the legal mechanism but also the society needs to change its view
towards the victims of rape and other sexual crimes.
115
Times of India Kolkata 2013 May 19; 1 ( Col. 3)
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Let’s take an overview on the improvements of the legal system, especially for women’s
protection, undertaken after the Nirbhaya gang rape and ponder whether we are on the right track
or not.
Legal Impact
Improvements In Legal System
In December 2012, due to huge public protests, a judicial inquiry committee was set up so as to
study the scenario and make recommendations to amend the present laws for effective
prosecution of sex offenders. More than 80,000 suggestions from the public were considered and
the committee submitted a report in which it was mentioned that the root causes behind crimes
against women were the failures on the part of the Government and police. Subsequently, the
Criminal Law (Amendment) Ordinance, 2013 was promulgated.
Certain stringent changes in laws have been made and six new fast-track courts were set up only
for rape cases. The objective was to reduce the number of rapes and sexual harassment cases.
The amended laws have made it clear that there is now harsh sentence for rape convicts, which
include death as well as life term penalty, stringent punishment for other offences against women
like eve teasing, acid attacks, stalking and voyeurism. Various sections of the Indian Penal Code,
the Indian Evidence Act, the Code of Criminal Procedure, and the Protection of Children from
Sexual Offences Act have also been amended by the Government.
According to law, a rape convict can be sentenced to imprisonment for not less than 20 years,
and can extend till his natural death. Rape convicts who are repeat offenders can be sentenced to
death. Stalking and voyeurism, for the first time, have been considered as non-bailable offences,
while an acid attack convict can be sentenced to a 10-year imprisonment.
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The Criminal Law Amendment Act of 2013
While the women’s movement in India had been demanding stricter rape laws for several years,
it was not until the brutal Nirbhaya gang rape in December 2012 that the issue grabbed the
collective consciousness of the nation. The spontaneous outburst of the public’s anger, fuelled in
good measure by ill-conceived media-bytes by politician and self-styled godmen alike, put the
government under pressure like never before leading to the passing of an ordinance by President
Pranab Mukherjee in February 2013, which would go on to receive a nod from the Lok Sabha
and the Rajya Sabha shortly after in March 2013. While the new law is by no means a perfect
one, it was a game-changer nonetheless. Most significantly, the new law expanded the definition
of rape to include non-peno-vaginal intercourse which was not the case earlier. Under the new
law, all forms of non-consensual penetrative sexual acts by men on women, now constitute rape.
Furthermore, the new law eloquently defined consent as an ‘unequivocal agreement to engage in
a particular sexual act’ rubbishing once and for all the ‘lack of resistance implies consent’
argument. The new law also, for the first time, made note of, and specifically defined, acts such
as forced disrobing, stalking, voyeurism and acid attacks, and making Sec 354 of the Indian
Penal Code much more potent.116
Comparison and Critical Analysis of the Rape Laws Before and After the
Criminal Law Amendment (2013)
Analysis of laws before the criminal law amendment, 2013
Rape laws have seen numerous transitions before reaching the present form through the criminal
law amendment of 2013, which was brought through as an ordinance as the parliament was not
in session. This amendment was brought after a nationwide outrage against the brutal rape of a
physiotherapist student in Delhi .
116
Monika Narang, Understanding social and legal impacts of Nirbhaya movement, India (2012) International
Journal of Development Research, Vol. 4, Issue, 6, pp. 1212-1219, June, 2014, Available online at
http://www.journalijdr.com
113
Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as
sexual intercourse with a woman without her consent by force, fear or fraud.117
Section 375 has seen an amendment in the year 1983, which overhauled the definition of rape
and also made changes to the punishments that were stipulated under the section 376. This was
made through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was
also brought about due to the widespread criticism of a judgment in the case of “Tukaram v State
of Maharashtra”118
In this case the trial court had pronounced the accused as not guilty which was based on the
concept that the victim had given tacit consent to the act. It was also observed that the girl was of
promiscuous character which was used as reasoning for the tacit consent. This was overturned by
the Bombay High Court which rightly pointed out that there was a huge difference between
consent and passive submission. It was very correct in its observation that mere surrender to
another person’s lust should not be taken as consent. This was upturned by the Supreme Court
who acquitted all the accused. This judgment was criticized widely by the civil society. The
ramifications of the case were seen in the amendments that were brought about in the IPC and
the Indian Evidence Act. Section 376 A to D were added to the IPC and section 114A was
introduced in the Indian Evidence Act.
To analyse the laws before the Criminal Law Amendment Act 2013 it is important to know how
the sections have defined rape and the punishments associated with it. The crux of the definition
of rape in section 375 IPC before the amendment of 2013 is that rape involves coercive non
consensual sexual intercourse between a man and a woman. There are six circumstances that can
be said to be the constituents of rape. The primary condition necessary for rape to be committed
is that there must be the commission of sexual intercourse between the man and the woman. It is
widely believed that rape can only be committed if the sexual intercourse has been done without
the consent of the victim, but this is not always the case, rape can be committed even after
consent has been obtained if the age of the woman is below the age of sixteen years. On a closer
look at the circumstances required for the commission of rape it can be broadly divided into three
parts. The first two clauses reveal that they deal with sexual intercourse with a woman ‘against
117
Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684
118
AIR 1979 SC 185
114
her will’ and ‘without her consent’. This means that the woman is consciously capable of giving
or not giving consent to the act. The next two clauses deal with the woman giving her consent
due to coercion that is by putting her or any of her family member to threat of hurt or grievous
harm and it also deals when the consent is obtained through misconception. The last two clauses
deals with the situation when the consensual sex with underage female person takes place.119
Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’
These are the terms that have undergone the most comprehensive change in the recent
amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the
penetration of the male genital organ into the female genital organ only. The courts interpreted
the term sexual intercourse as “mere slightest or partial penetration of the male organ within the
labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’120 The courts
have stressed on the fact that the depth of the penetration is immaterial.121
It is also laid down that there is no requirement for injuries to be present on the private part122of
the woman to constitute rape. The hymen need not be ruptured.123Thus the essential condition of
rape is penetration and not ejaculation. Ejaculation without penetration will constitute as an
attempt to rape and not rape actually. 124 These conditions were expressly mentioned by the
Supreme Court in the case of “State of Uttar Pradesh v Babulnath”125 The court in this case
while delving into the essential ingredients of rape made the observation that “To constitute the
offence of rape it is not at all necessary that there should be complete penetration of the male
organ with the emission of semen and rupture of hymen. Even Partial or slightest penetration of
the male organ within the labia majora or the vulva or pudenda with or without any emission of
semen or even an attempt at penetration into the private part of the victim would be quite enough
for the purposes of section 375 and 376 of the Indian Penal Code. That being so it is quite
119
https://www.lawctopus.com/academike/comparison-critical-analysis-rape-laws-criminal-law-amendment-2013/
120
Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;
121
Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;
122
Fateh Chand vs State of Haryana, (2009)15 SCC 543
123
Guddu vs State of Mp,(2007)14 SCC 454, 2006.
124
Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;
125
(1994) 6 SCC 29
115
possible to commit legally the offence of rape even without causing any injury to the genitals or
leaving any seminal stain”
An important issue of widening the ambit of section 375 to include the any bodily penetration as
rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors.126
The petitioners wanted to increase the ambit of the definition to include penetration of any male
body part into any orifice in the woman’s body. This however was rejected by the court which
was not in favour of tinkering with the existing definition of the term. The court said that it was
necessary to prevent chaos and confusion in the society with regard to the changed definition of
rape and hence Section 375 should not be altered.
It is also important to note that there is also an exception to section 375. The exception is known
as Marital Rape. Marital Rape is defined as non consensual sex with wife who is over the age of
15 years. The crux of the argument is that any coercive or non consensual sex with a wife over
the age the age of 15 years will not be considered as rape within the purview of section 375. The
immunity of the husband from getting convicted for marital rape arises from the assumption that
after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very
problematic situation according to me because this is in contravention to the statute that states
that the minimum age for marriage of a woman should be 18 years. So if that is the case a man
cannot marry a wife who is of 15 years of age. I also don’t agree with the fact that Marital Rape
is not considered to be rape because I don’t agree with the concept of lifelong consent to sexual
intercourse just because a couple is married.
Punishments
Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of
rape. There is a minimum punishment of seven years and it can also be given with a fine and
extend to life imprisonment. However Section 376(2) provides the situations where the quantum
of punishment will be very high and it will include rigorous imprisonment which will not be less
than a term of 10 years.
126
(1998) Cr LJ 2428
116
The punishment for gang rape is provided under sub section 2 of section 376 IPC which
postulates that when a woman is raped by more than one person then each of the person will be
convicted of the crime of gang rape and the punishment would not be less than ten years of
rigorous imprisonment in such cases.
Rape Laws After the Amendment of 2013.
The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang
Rape case which shocked the whole nation with the brutality of the act committed. Widespread
protests and agitations forced the legislature to contemplate the changing of the prevalent rape
laws. The basic idea was to make them more stringent and introduce harsher punishments
besides broadening the ambit and definition of the term rape.
Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather
famous ‘Justice Verma Committee’ which was made to collect suggestions and make
recommendations for the legislature to make a law to combat rape and other crimes against
women.
The technical committee was so proactive with its working that during its short duration it
received as many as 80,000 suggestions over which deliberations were done. These suggestions
were sent by various activists, lawyers, NGOs and other persons representing the ‘civil society’.
Since the legislature was adjourned and there was no session, the committee’s recommendations
were introduced via an ordinance.
The offence rape was now amended or given a broader meaning which was comprehensive
enough to include any kind of penetration and also in any body part of the woman or girl. This
was the most important change because earlier section 375 of the IPC only stipulated the Penile
Vaginal penetration as rape. The fact that the new recommendations added that any penetration
would be considered as rape was the most efficient tool in widening the ambit of the term rape
which was being demanded earlier on the basis of the recommendations of the fifth law
commission report. There was also the inclusion of registering complaints and medical
examination. The report categorically mentioned, “Any officer, who fails to register a case of
117
rape reported to him, or attempts to abort its investigation, commits an offence which shall be
punishable as prescribed.127
The committee gave extensive recommendations regarding avoiding marital rape as well as rapes
committed via commission of void marriages. This was very important as I feel that Marital
Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not very
hidden that legislations are not being made on the issue. This is why it is such an important thing
since everyone knows about it and yet the effort to include it under the definition of rape has
only begun recently. To include this fact and observation the committee mentioned compulsory
registration of marriages so as to provide legal sanctity solemnization of marriage. The Code of
Criminal Procedure also underwent a similar overhauling attributed to the new law and had
previously gone through the same process after the judgment in the Supreme Court decision in
the “Gurmit Singh Case”. 128
Critical Comparison of the Two Legislations
It goes without saying that the laws have now changed drastically from what it existed
previously. Societal views changes from time to time with the advent of new values and
technologies. It is only fair that similarly laws which matter so much in regulating the law and
order prevailing in the society also changes from time to time. This is important to counter and
combat new types of crimes that have emerged of late such as cyber crimes which include data
theft, harassing, breach of privacy and so and so forth. The major rape and sexual assault cases
such as the ‘Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel,129
the Mathura Rape Case,130etc. all have had an effect on the functioning of rape laws and their
interpretations as well as reformations.131Rape was included in the Indian Penal Code, 1860 in its
original form since 1924.132
127
Report of the Committee on Amendments to Criminal
Law http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf
128
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393
129
Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639
130
1979 AIR 185
131
http://www.bbc.co.uk/news/world-asia-india- accessed on March 2017
132
http://indiankanoon.org/doc/1279834/(Accessed on March 2017)
118
The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law
(Amendment) Ordinance, 2013.133 The Act was mandated to make change in the Indian IPC &
Cr.P.C as well as the Indian Evidence Act. There was a rise in threats towards individual privacy
in the country134and it was high time to include certain new crimes under the Indian Penal Code
in consonance with the passing of time. A new crime that was introduced and was not provided
for in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing
images, movies or any such media material without the permission of the person portrayed or
screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who
derives sexual gratification from the covert observation of others as they undress or engage in
sexual activities.135
Voyeurism is a criminal act which creates apprehension for society and is infringement of
expectations of privacy that all citizens have about their body which they do not wish to expose
it to others.
The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of
pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and
this has resulted in apprehension in minds of criminals.
Another very important change from previous legislations is the much required change in the
procedure of providing evidence in the court of law. After the Mathura rape case the outcry did
result in amendment of Section 114A136 of the Indian Evidence Act. This was done to maintain
that despite there being the lack of consent given by the women, there was often a character
assassination of the women at the court trials which was very unfortunate. Thus there was a
133
Criminal Law(Amendment) Ordinance, 2013, available at http://mha.nic.in/pdfs/criminalLawAmndmt–
040213.pdf (Accessed on March 2017)
134
http://bit.ly/10nMSTT (Accessed on March 2017)
135
Oxford English Dictionary, available at http://bit.ly/YN2ZvI accessed on March 2017
136
114A. Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under
clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the
Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and she states in her evidence before the Court
that she did not consent, the Court shall presume that she did not consent.
119
transition from earlier legislations and Section 53A137 of the Indian Evidence Act was introduced
making it explicit that in a trial where there was sexual assault or rape then the evidence supplied
relating to the victim’s previous sexual experience or even for a matter of fact her ‘character’
could not be admissible in the court of law. Still is unfortunate that the character assassination of
the victim continues in the society which increases the hurt suffered by the victim.
On instances of rape or sexual assault cases the evidence concerning consent is often derived on
the basis of the past conduct of the woman which seems rather frivolous as at the instance of the
abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes
could be raped and their right would not be protected as the victim’s previous sexual experience
and “promiscuous character” would always malign the proceedings and create a bias in the
judiciary’s mind. The sole reason for this inclusion of this amendment was to prevent the breach
of privacy of the victim’s sexual history by preventing it to be included as a piece of evidence in
court. Thus unwarranted intrusion in the privacy of the victim’s life should not be supported by
members of the civil society. The new law protected defamation of the woman and rights of the
woman to live with dignity.138
Lastly and very importantly, there was also an introduction of sexual harassment at workplace
(under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and
an enhanced definition of rape provided for in the amended law. The earlier legislation had
focused on coercion139and the fear of death or hurt of someone close to her140 as an example of
force exerted or lack of consent when there was commission of rape. Another example of deceit
which culminated into the act of committing rape was commission of false marriages Jayanti.141
137
Evidence of character or previous sexual experience not relevant in certain cases.- In a prosecution for an offence
under section 354, section 354A, section 354B, section 354C, section 354D or section 376, section 376A, section
376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit
any such offence, where the question of consent is in issue, evidence of the character of the victim or of such
person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality
of consent.
138
http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013accessed on March 2017
139
State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653
140
State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224
141
Rani Panda v. State of West Bengal, 1984 Cr LJ 1535
120
To conclude with the comparison between the legislations it can be said that the two major
substantive changes were introduction of sixteen forms of rape (Penetration made by object and
all parts of body included) and also the increase in age of consent. Both were introduced to
combat rise of rapes committed on minors specifically. Though there was another
recommendation by the J.S.Verma Committee which wanted to introduce marital rape under
section 375 but this was not allowed as it would have been a social controversy. One must also
note that the sexual harassment at workplace which was for the first time highlighted in the case
of Sakshi v. Union of India142
which was a public interest litigation seeking punishments for sexual harassment committed
against women at workplaces. It also wanted to widen the interpretation of rape to include all
forms of penetration to be covered, the court had then given the decision in favour of the NGO
but the parliament was did not recognise it. The 2013 Amendment and Act made this a reality as
it gave sanction to the judgment. So I believe laws can be made much more stringent than they
already are.143
Social Impact
The youth and the social media: The Nirbhaya movement across the country has certainly
foxed the authorities. They are wondering how so many people could come out and protest, there
must be someone organizing all this, trying to foment trouble. The authorities do not know how
to respond and the public anger justifiably is just growing. There is no leader for this movement,
there is no common ideology shared by all the protestors, yes there is outrage but there is no
ideology or concrete solutions and yet the protests are gaining more strength. So how can this
happen? How can leaderless, organizationless masses still bring the government to such a
hopeless situation? Malcolm Gladwell, talks about a fundamental shift that is happening in
society, he calls it the Generational Paradigm Shift. He makes the argument that there is a strong
shift happening from the notions of a social organization based on hierarchy and expertise, to a
social organization around the network. A shift from individuality to being connected to a
community and need to participate with the community. The Delhi gang rape and society´s
reaction to it has also revealed cleavages of class and caste in addition to institutionalized sexism
142
AIR 2004 SC 3566
143
www.esocialsciences.org/Download/Download.aspx?qs=q8XGv7hDeoz...
121
and deeply rooted sexist beliefs across Indian states. The growing independence, both financial
and social, of young women in India, has yet to be digested by many young men, who continue
to believe that women should ´know their place´. But many of the protestors in Delhi were
middle-class students and professionals who clearly identified with Nirbhaya´s aspirational
middle class identity and values. Dalit women in India have long been the targets of systemic
rape by upper caste men, particularly in rural areas, where traditionally some upper-caste men
have considered sexual access to women their ´birth right´. Due to poverty and lack of land, Dalit
women are far more likely to work outside the home for economic survival than their upper caste
rural counterparts, making them more vulnerable to sexual abuse. The entire caste system rests
on the edifice of gendered caste boundaries between ´pure´ and ´chaste´ upper caste women on
the one hand and ´sexually available´ Dalit women on the other. Caste hierarchies thus depend
both on the racialization of Dalit communities and the extreme sexualisation of Dalit women. A
Dalit woman or girl who is gang raped in a village in one of India´s “backward” states might
receive media attention, but her life is far removed from the fast-paced, globalised lifestyles in
India´s large cities.
Crack down on women?
Insensitive comments from politicians have been widespread since the Delhi gang rape, an even
more worrying trend has been the attempts to address sexual violence through cracking down on
the freedoms and rights of women and girls.In May last year, six villages in the northern state of
Haryana decided not to send their daughters to school due to instances of sexual harassment of
teenage girls. After much criticism, the decision was reversed.Village councils in the same
region had also earlier called on the government to lower the age of marriage of girls to 16 from
18, saying that it would stop rapes occurring.More recently, Delhi’s law minister was accused of
moral policing when he allegedly led a mob which illegally detained and harassed a group of
Ugandan women on the suspicion that they were involved in a drugs and prostitution racket. The
Delhi Chief Minister Arvind Kejriwal has defended the actions of his minister saying that “rape
tendencies start from drug and sex rackets.”A mobile police unit named after Nirbhaya –
launched in the central state of Madhya Pradesh to protect women – was found to be targeting
young couples and women wearing Western clothes. The unit raids bus stops, women’s colleges
and tourist spots and dishes out punishments such as forcing young couples to do sit-ups and
reporting them to their parents and educational institutions.
122
Nirbhaya Trust
In December 2013 the family of the victim established the Nirbhaya Trust, an institute formed to
assist women who have experienced violence to find shelter and legal assistance. Due to the fact
that Indian laws do not allow the publishing of a rape victim’s name, it was named Nirbhaya
which means fearless in Hindi, after the name used by the media. The victim’s father stated, “So
many people supported us, so we want to help those girls who have no one.”144
Government Initiatives to Protect Women
After the Case of Nirbhaya the govt has taken initiatives to protect the women and they are:
Nirbhaya Fund
As a reaction to the public outrage and reaction, the former Finance Minister, P. Chidambaram,
allocated a lot of money for tackling women’s issues. He announced the “Nirbhaya Fund” in
Parliament on his Budget Speech 2013-14. This showed an acceptance, either willing or forced,
about the dire situation of women’s safety in India. The initial amount allocated for the same was
a whooping INR 1000 Crore. Further, every year the same amount is reallocated in the budget.
Implementation of the Nirbhaya Fund
 In 2013, the government set aside about INR 321 crores for a project for sending distress
calls through daily use gadgets like phones, which has not been implemented due to fund
not being allotted for the project.
 Further, there had been proposals to put GPS trackers in trains, buses and such public
transport, train stations etc. About Rs.1000 Crore was allotted to this, but even this has
not been implemented on a large scale.
 A women’s helpline has been started, but it is not accessible to most rural areas.
 One Stop Centres for rape victims exist just one paper.
144
http://www.freepressjournal.in/india/nirbhaya-case-four-years-on-no-justice-but-heaps-of-history-created/988145
123
 Central Victim’s Compensation Fund has been set with a budget of Rs.200 Crores.
Karnataka and Tamil Nadu have never withdrawn from the same.
The broad points about the implementation of the scheme again highlights how the Nirbhaya
movement was a fad, and although the public and the government is still aware of the state of
women in India, not much is being done for the same.145
Safety Measures In Public Transport for Women
Some measures taken by the Government for the safety of women in Delhi are as follow:
 Installation of GPS devices on all public buses
 Verification of the crew of all public transport vehicles, including owners of chartered
buses
 Appointment of lady police officers
 Increasing the number of PCR vans
 Recruiting more people for the proper running of transport department
 Introduction of Home Guards in the night buses of DTC
 Police verification of school bus staff
 CCTV cameras at various places in Delhi. At present, CCTV cameras are operational at
34 markets and four border check posts in Delhi.
 The Government announced in 2013 that verification needs to be done by the Delhi
police on all passenger vehicle drivers and after that the transport department would issue
public service vehicle (PSV) badge to them.
Present status
So far GPS is installed in 6321 DTC and cluster buses, 45,000 in autos, 5,549 chartered buses,
while the actual number of public transport vehicles is much more than this. So far, over two
145
https://blog.ipleaders.in/nirbhaya-gang-rape-case-study/
124
lakh PSV badges have been issued and 3,000 auto and taxi owners’ addresses have been sent for
verification. In fact, after the Nirbhaya case, the only measures that have been successful to a
certain extent are DTC’s night service which increased from 42 to 80 buses now and the services
of ladies buses have also increased to 26.146
New Measures to Protect Women
The government has initiated a time-bound action plan to strengthen the police and
administration to combat sexual crimes against women. The measures include:147
1. The National Crime Records Bureau (NCRB) will compile a database of people convicted of
criminal offences. The details of criminals convicted of crimes against women will be displayed
on its website.
2. Action will be taken to provide the facility of registering a first information report (FIR) in any
police station irrespective of the jurisdiction or area. The FIR may thereafter be transferred to the
concerned police station for investigation. This will pertain to serious crimes including issues
against women.
3. Citizens should not face any harassment when they come forward to assist women in distress.
For this, they should be protected to enable them to freely report a crime and assist the
victim/police without being subjected to any interrogation or being forced to become witnesses.
4. ‘Women only’ buses should be pressed into service. A programme is proposed to encouraging
more women-driven buses/taxis all over the country.
5. The existing Motor Vehicle Regulations will be reviewed.
6. The government will review the degree to which vehicle windows are tinted. The use of
curtains will be reviewed taking into account the need for passenger comfort and visibility
required for security purposes. The road transport ministry proposes to revise the standards
appropriately and ensure compliance by manufacturers of buses.
146
http://www.mapsofindia.com/my-india/india/nirbhaya-gang-rape-after-how-effective-are-the-new-laws
147
http://www.livemint.com/Politics/5RHy13lfID09ZiGBUs2ANK/New-measures-to-protect-women.html
125
7. There is a need for 100% verification for drivers, conductors, helpers (the entire crew) of
public transport vehicles, plying in Delhi in a time-bound programme that will include collecting
bio-metrics of all such persons as well. For this, action will be taken to review the relevant rules
for mandating the same. The ministry of home affairs will develop a protocol over a defined time
frame, for verification of the crew of public transport vehicles and suitably advise the state
governments also to undertake the same. After the stipulated time frame, no public transport
vehicle will be allowed to be driven/manned by any driver/conductor/helper or other crew
member unless such a person has been verified and carries the verification certificate/identity
permit.
8. Owners of buses will be held responsible for compliance of the steps outlined. It is also
necessary to bar owners of vehicles involved in repeat offences from retaining existing
permits/obtaining any fresh permits for plying public transport vehicles and for impounding of
vehicles involved in repeat offences. The roads ministry/state governments will initiate action in
this regard. The particulars of the bus owner/drivers and details of permits and licences should be
prominently displayed in the buses both inside and outside, at places where it is prominently
visible in easily readable fonts. Use of GPS devices in all public transport vehicles is necessary
along with the setting up of a control room to monitor movement of buses. The roads ministry
will issue an appropriate advisory to all the states in this regard.
9. There is need to increase the quantum of fines leviable on the violation of permit conditions
and to disallow compounding of offences beyond a certain number.
10. The Delhi government will issue a draft notification for revising the permit for public
transport vehicle incorporating provisions for disallowing use of inappropriate films and tinted
glasses, higher punishment for repeat offences and other necessary measures. The final
notification will be issued within a month.
11. The roads ministry secretary will write to all the states regarding the revision/changes in the
permit conditions being made by the government of Delhi and request them to take similar
measures.
12. At the time of inspection of police stations, it should be mandatory for the inspecting officer
to specifically record his findings regarding the gender sensitivity of the personnel posted in the
126
police station as well as the record of the police station/station house office (SHO) in
registering/investigating complaints of crimes against women, and for checking whether women
are being discouraged from lodging complaints in the police stations.
13. Strict action will be taken against police personnel and officers found to be either displaying
bias against women or neglecting their supervisory responsibilities in this regard.
14. There is a continual need for gender sensitization among the police force, particularly at the
level of the constabulary on beat duty or at the police stations. There is a need for impressing that
there has to be a complete cessation of gender-insensitive comments. For this, training courses
need to be organized on a regular basis by the police. Strict disciplinary action will be taken
against any official indulging in gender bias. Action taken in this regard has to be reported at
every level. If action is not found to be taken against an erring official, the supervisory officer
will be held accountable. Instructions in this regard will be issued and compliance ensured.
15. At all levels, it will be made mandatory for a reporting officer to comment upon on the
gender sensitivity of the police personnel reported upon in the annual performance appraisal
report. It will be emphasized and ensured that remarks in this regard are based on specific
instances of behaviour and are not reduced to a ritualistic yes/no. When considering postings or
promotions of police personnel, the attitude towards women should specifically be taken into
account.
16. There is an imperative need to recruit more women in the police force. Women will need to
be recruited in large numbers in the Delhi Police. The home ministry will take necessary action
to obtain necessary approvals within this financial year. Action would, similarly, need to be
taken in the states as well, to recruit more women in the police force. In order to incentivize the
states in this regard, the home ministry will formulate a suitable proposal/scheme within four
weeks and obtain necessary approvals.
17. There is need for additional police control room (PCR) vans in Delhi. A proposal for 370
such vans has been sent by Delhi Police. Approval in this regard is proposed to be expedited
within this financial year.
18. It would be proposed to have lady police personnel in at least some PCR vans, such as those
deployed in the vicinity of educational institutions, cinema halls, malls and markets, as also the
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routes frequented by women employees of BPOs148 returning from work at night. Over time, it is
planned to have some more ‘all women’ police stations.
19. It is also planned to further develop and promote community policing. This would not only
augment the effectiveness of the police force but would also motivate responsible persons in
each locality to perform their duty as citizens.
20. A number of cameras are in the process of being installed and at present CCTV149 systems
are functional at 34 markets and four border check posts in Delhi. There is, however, an
imperative need to further increase the number of CCTVs in public places. For this, the police
will elicit the cooperation of all stakeholders, such as traders’ associations, residence welfare
associations (RWAs), managers of commercial/office buildings, malls, cinemas, NGOs, etc. who
will be encouraged to install and maintain CCTVs of approved specifications in and outside their
premises. Similar action also needs to be taken in all states.
21. There is a need for increased focus on street lighting in public places. Civic bodies must
undertake a review of the existing facilities and strengthen these wherever required.
22. The department of women and child development will implement a scheme to provide
compensation to victims of sexual assault and also a scheme for setting up crisis response centres
in select hospitals to provide psychological and other assistance to the victims of sexual assault.
The proposed scheme will be implemented in a pilot phase in 100 districts from 2013-14.
23. The government proposes to put in place a countrywide three-digit number (such as 100) to
respond to all emergency situations. This would be similar to 911 or 990 emergency
management systems in vogue in many developed countries. Such a service would be available
to subscribers of all telecom service providers as currently there are different telephone numbers
being used for responding to different situations or target groups. It is, therefore, proposed to
have a system where there is one point of contact available to a person in distress of any kind.
Also, once a call is made to this number, the caller should not be asked to contact some other
special/emergency number. Instead, the call should seamlessly be transferred from the single
point of contact to the appropriate distress line. Ministry of home affairs in coordination with the
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business process outsourcing companies
149
Closed-circuit TV
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department of telecom will, by the end of February 2013, come up with a basic concept note on
how the system will be established and will operate.
24. In addition to the general emergency response helpline, there will be a helpline dedicated to
responding to women in distress. This helpline should have a unique three-digit number across
the country. For this purpose, the number 181 may be operationalized all over the country.
25. The negative, stereotyped and/or indecent portrayal of women in movies, television shows
and advertisements has been a matter of concern for long. It would be helpful if all stakeholders
were to be continuously engaged with in this regard. There is also a need to have a sustained
media campaign of public interest advertisements.
26. The role of value education in schools is recognized as being very important. However,
merely prescribing it in the curricula/syllabus is not adequate. Teachers should be given training
in value education. Sustained awareness campaigns on gender equality need to be undertaken in
all schools and colleges and gender modules need to be integrated in the curriculum at every
level.
27. It would be useful to impart training to girls in educational institutions in self defence/martial
arts.
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CHAPTER- 6
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CHALLENGES AFTER THE CRIMINAL LAW AMENDMENT ACT , 2013
"Its been four years and we have still not got justice even after struggling," 'Nirbhaya's' mother
said.150Four years after the shocking December 16 gangrape and murder in Delhi that led to
widespread protests in the country and also made international headlines, the victim’s mother
said she was still awaiting justice. “It’s been four years and we still haven’t got justice even after
so much of struggle,” the mother of the victim.
Four years later, numerous legal changes have been made in India, aiming at protecting women
from sexual violence, encouraging people to file reports about sexual assault with the police, and
punishing rapists. But have these new laws and regulations changed enough?
What hasn’t changed?
1. Rape Rates Continues To Be High
Rapes across India have continued to occur at an alarming rate, despite these new laws and
awareness. One hundred women are raped every day in India, according to a 2015 article in The
Irish Times. Marital rape continues to be legal, and crimes against women have increased by 7.1
percent since 2010. Reported rapes are on the rise in Delhi with nearly 1,813 reported rapes in
2014, compared to 1,441 in 2013.
These numbers also don't account for the many rapes that are reported and forgotten, or kept
secret. A 2013 report by Girls' Globe estimated that 90 percent of rapes in India are not reported;
this makes the actual possible numbers of sexual assault each year dismally higher. Even worse,
when women aren't "registered citizens" (meaning that they do not have a passport, a situation
that is common among the working class), getting help is even more difficult. A number of
violent sexual assaults, similar to the 2012 attack on Pandey, have been in the headlines in a
recent years:
 In November 2015, a 19-year-old woman commuting by bus to work as a nurse was

raped by the bus driver and the bus cleaner. Many compared it to the Delhi rape, though
the victim survived; the driver and the cleaner were both arrested.
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still-has-got-no-justice-4429791/
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 In October 2014, a 16-year-old girl filed a police report after being gang raped by the
same group on two separate occasions. The gang set her on fire in December 2014, and
the victim died soon after.
 Two cousins aged 14 and 16 were gang raped, murdered, and found hanging from a
tree after heading to a local field they used as a restroom.
 A 7-year-old was gang raped by three men earlier this month in New Delhi. Only one of
the alleged attackers has been arrested so far, and the girl was hospitalized for several
days for her injuries.
2. Women Continue To Be Asked To Accept Violence As Normal
A study conducted by Children’s Movement for Civic Awareness surveyed over 10,000 high
school and college students throughout India, and found that 57 percent of boys and 52 percent
of girls believed that when women "dress and behave provocatively," they can instigate violent
behavior in men. The same study found that 43 percent of boys and 39 percent of girls believed
that "women have no choice but to accept a certain degree of violence."
One of Jyoti Singh Pandey’s rapists publicly blamed women who are assaulted for “wearing the
wrong clothes," a sentiment that was unnervingly similar to remarks made by Manohar Lal
Khattar, the top elected official of Haryana state, in 2014: "If a girl is dressed decently, a boy
will not look at her in the wrong way. Freedom has to be limited. These short clothes are
Western influences. Our country's tradition asks girls to dress decently."
3. Many Feel That Education Is Not Enough
Manjunath Sadashiva, the director of the Children’s Movement for Civic Awareness, feels that
the educational system may be of little help in dealing with the problem of sexual assault in
India: “Our education system is not helping at all in removing the stereotypes in the society. It is
not moulding or shaping young minds to be humane citizens.”
Writing in Quartz India, Saptarishi Dutta noted that "unless India manages to revamp its
curricula and promote gender sensitization classes in schools, patriarchal attitude is likely to
thrive. Harsher laws can do only so much."
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4. Women help desks are working, but many question quality of help
While the Delhi Police now have 161 help desks staffed by female officers, overwork is evident,
with 70% of female officers reporting for over 8-hour shifts per day, according to this 2014
BPRD study on national police working conditions.
Those who deal with these help desks question their competence.
“Women help desks are generally manned by new recruits, rarely having training on legal and
social aspects,” Shikha Chibber, a New Delhi-based human rights lawyer told India Spend.
The view is disputed by DCP Sharma. “Women help desks are manned by lady constables who
are given training as police officers and frequent training rounds. These include trainings of
literacy, legal awareness, soft skill development and gender sensitivity. Trainings sessions are
conducted by the police training colleges and SPUWAC. We have conducted two rounds of
trainings with women help desks since January 2016 and one more round is scheduled in
September. Women help desks are like an interface for the registration of complaint, they don’t
function as investigative agencies. Since they have been started recently, they will gain
experience with time”.
The training lacunae might only grow as training expenditure falls. Between 2011 and 2015,
Delhi Police expenditure remained largely the same, but the money spent on training declined
from 6.42% in 2011–peaking in 2013 at 9.35%–to 2.57% in 2015.
“In spite of the shocking and frightening picture, the police response to violence against women
remains grossly inadequate and inappropriate,” according to this 1993 NCW report. “The police
officers hold several stereotypes like rape is victim-precipitated, male sexuality is an
uncontrollable force and women should not arouse it.”
Chibber, the lawyer, said NGOs provide the gender-sensitivity training in police training schools
and there is no standard plan or curriculum, and officers do not take it seriously.
“For many of them, it is a relaxation time or a leisure time activity,” said Chibber. “The biggest
failure is that there is no impact assessment exercise, no follow-up mechanism and no agency to
monitor the trainings.”
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There is an “imbalance” in such training, said Pratishtha Arora, a trainer at the Centre for Social
Research, an advocacy. “Lower ranked women are not as empowered as their male counterparts
to voice themselves,” said Arora. “Thus, training itself depicts a deep patriarchal bias.”
5. The holes in police reform, and the slow progress to fill them
One of the important changes to the law recommended by the Verma Commission tasked with
reforms post Nirbhaya was that female officers should record crimes against women and handle
their statements.
Since that meant more female officers, the government had to allow the hiring of more women,
so that they fill 33% of what are called “non-gazetted” ranks, from constable to sub-inspector.
That approval came in March 2015.
There has been some progress: the female constabulary of the Delhi police grew from 3,572 in
2011 to 4,582 in 2015, according to the Data on Police organisations reports 2011-2015 of the
Bureau of Police Research and Development (BPRD).
But, as we said, women are less than 9% of the Delhi Police and 6.4% of the police force
nationwide, according to 2015 BPRD data. This 2014 BPRD study on national police working
conditions suggested that nearly 20% of female representation would lead to better policing.
Training on “gender-sensitivity” has been slow, although police officers said there has been
progress.The first nationwide advisory on such training–which includes making police aware of
discrimination and violence against women, family structures, case law, legal provisions,
scientific aids and methods to handle victims–was issued in 2009, according to this 2014 reply to
the Rajya Sabha, parliament’s upper house.
Such training was part of the curriculum of India’s police force at all levels, according to this
1993 report by the National Commission of Women and Kishan Kumar, special commissioner of
police (training), Delhi Police, emphasised that “gender sensitisation is an integral component of
police training”.
But there are no special funds set aside, “no separate head for budget allocation and utilisation
for gender sensitisation”, as Varsha Sharma, Deputy Commissioner of Police, Special Unit for
Women and Children, Delhi Police put it.
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Gender-sensitisation programmes aim to bring in help-desks staffed by women, training in

schools, neighbourhoods and ensuring the police immediately resistor crimes against women,
said Sharma.“The programmes are conducted not only by police training colleges but by non
government organisations (NGOs) and civil society organisations as well,” she said. There are
161 helpdesks for women across Delhi, and this response to a right-to-information (RTI) request
by the writer revealed that between 2012 and 2015, the Delhi Police ran 65 courses on gender
sensitisation.
In terms of crimes against women, none of this has helped.
Will things change?
While there has been some progress, much more needs to be done to halt the threats of rape and
violence against women in India.
More education is necessary to help change attitudes about sexual violence. Women's rights
activists have been calling on the government to spend more money and time educating people to
prevent rape. Priya Nanda, director of Social and Economic Development at the International
Center for Research on Women, feels that people do not engage enough with the broader issues
at play where it comes to sexual violence in India; rather, she feels that people focus "time to
time on a particular rape, then there's the diagnosis of that rape, and we move onto the next one."
"Laws alone cannot bring lasting change. Society needs to change their patriarchal attitude
towards women," says Kamla Bhasin, an advisor at Sangat, a South Asian feminist network
based in Delhi. While more effective arrests, increased police accountability, quicker trials, and
harsher sentencing and punishments will eventually dissuade some potential rapists and set
society-wide examples of how sexual assault should be dealt with, more needs to happen soon to
save the women and girls of India.
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The Impact of Being a Juvenile in India
Unfortunately, even in the 21st century when India is boasting about Science and Technology, the
Juvenile Justice Board declared Mohammad Afroz as a minor on the basis of his primary school
enrollment record. When the police requested for age determination test (bone ossification), their
plea was turned down finding loop holes in a judgment passed by the Supreme Court a year
earlier.
This is the impact of a juvenile culprit in India. No matter how big the crime is, he is safeguarded
by the law. Moreover, one is not even allowed to conduct an age determination test. Tell me,
how many of our parents are of same age as that of their birth certificate or primary school
enrollment record?
But then, the court turns down the plea of a bone ossification test only because the primary
school record proves him to be a minor – such is the benefit, impact and effect of Juvenile
criminals and offenders in India so what if they are rapist, so what if their action killed an
innocent person on whom her family depended for a better future. In addition, they want to hide
his identity to keep him protected as he belongs to a poor family with 6 siblings and a father with
an unsound mind. But what about the parents of Nirbhaya who strived hard to educate their
daughter enough to become a medic? Interestingly, his counsellor in an interview with Quint
revealed that Afroz doesn’t miss his family at all.151
Rape Cases After the Incident of Nirbhaya's Rape
Kaini Rajan vs. State Of Kerala152 In this case the prosecutrix alleged that on 17.9.1997 she
was forcibly taken and raped by her brother’s friend whom she had known for two years. She
stated that she made a hue and cry but was threatened with death and made quite. However, it
was submitted that her cries were not heard by the neighbours. It was later found that she
continued to have consensual relations with the accused after this incident on the promise of
marriage. The prosecutrix became pregnant and gave birth to a child in 1998. Accused did not
keep his promise to marry her and even disputed the paternity of the child. The prosecutrix then
filed a complaint against him. The Supreme Court found doubt in the version of the prosecutrix
151
152
2013 (9) SCC 113.
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as her shouts were not heard by anyone and the report was filed 10 months after the incident.
Also, although her family knew the accused’s family, no attempts were made to marry the two
by the prosecutrix’s family. All of these cast a doubt on the prosecutrix’s allegations. The
Supreme Court acquitted the accused.153
Mumbai Gang Rape 2013
2013 Mumbai gang rape was executed by five individuals in the abandoned Shakti Mills
compound, Mahalaxmi, Mumbai. On August 22, 2013, a 22-year-old photojournalist with her
male colleague went to the deserted compound on an assignment. Five men attacked them, tied
the male colleague and molest the photojournalist. They also threatened both of them to not to
report this incident. She gave her statement to police after four days on the 26 August, after
receiving medical treatment from Jaslok Hospital. In her statement, she bravely said that, “I want
no other woman in this city and country to go through such a brutal physical humiliation.
Perpetrators should be punished hardly, they have ruined my life. No punishment short of a life
term will take away my pain, humiliation and physical abuse I underwent. Rape is not the end of
life. I will continue my fight.” This spread like a fire in the jungle, and soon the police were able
to catch those culprits in 65 hours. On April 4, three of the culprits were sentenced to death while
two of them were awarded with the life sentence.
Kamduni Gang Rape and Murder case 2013
On 7 June 2013, a 20-year-old college student was abducted, gang-raped and murdered in
Kamduni, near Barasat, about 20 km from Kolkata. The victim, a second year BA student of
Derozio College, was walking home along the Kamduni BDO Office Road in the afternoon,
when she was abducted and taken inside a factory where she was gang raped by at least nine
men. After raping her, the perpetrators tore apart her legs up to the navel, slit her throat and
dumped her body into a nearby field.
At around 8:30 pm local time, the brothers of the victim discovered the brutalized, mutilated,
naked body of their sister alongside a bheri in the At Bigha region of Kharibari in Rajarhat. At
around 9:45pm, an altercation and subsequent skirmish occurred between the villagers and the
police when the latter tried to recover the body of the victim. The crowd damaged three police
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vehicles. At around 2 am, a huge police contingent recovered the victim's body from the villagers
and sent it to Barasat for post mortem.
On 17 June, Mamata Banerjee, the Chief Minister of West Bengal, visited Kamduni. She
promised that charge sheet would be produced against the arrested within 15 days of the incident
and that her government would plead for the capital punishment of the culprits. However,
nothing has been done so far because of the stronghold of the Trinamool Congress in the area.
The residents of Kamduni caught hold of Ansar Ali, the prime accused, and handed him over to
the police. After interrogation, he confessed to have committed the crime along with four others.
Five persons were named in the FIR. Based on that, the district police arrested three persons in
the early hours of 8 June.
The case is being investigated by the CID, West Bengal. On 16 June, the CID officers took the
eight accused to Kamduni to reconstruct the incident amid tight security by the police and Indian
Reserve Battalion. For 45 minutes, the accused recounted how they had gang raped and then
murdered the victim, throwing her body over the boundary wall afterwards. Even fifteen days
after the incident, no charge sheet was filed. On 22 June, Ansar Ali was remanded in judicial
custody for 14 days. The accused and State Govt. want the legal proceedings shifted from
Barasat court.
Parminder @ Ladka Pola vs. State Of Delhi154 In this case, the prosecutrix, a 14 year old, who
had gone to meet her friend who lived near her house, was raped by the friend’s brother and
threatened with death if she raised an alarm or narrated the incident to anyone. That evening she
narrated the incident to her mother and a complaint was filed against the accused. The court
found that the conduct of the accused at the time of commission of the offence of rape, age of the
prosecutrix and the consequences of rape on the prosecutrix are some of the relevant factors
which the Court should consider while considering the question of reducing the sentence to less
than the minimum sentence. In the facts of the present case, the Court found that the prosecutrix
was a student of eighth class and was about 14 years on 28.01.2001 and she was of a tender age.
She had gone to the house of the appellant looking for her friend- the sister of the appellant.
154
ILC-2014-SC-CRL.
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When she asked the appellant as to where the sister of the accused was, he told her that she was
in the room and when she went inside the room, he followed her into the room, bolted the room
from inside and raped her. As a result of this incident, her parents stopped her from going to the
school and asked her to study eighth class privately. Considering the age of the prosecutrix, the
conduct of the appellant and the consequences of the rape on the prosecutrix, the Court did not
think that there were adequate and special reasons in this case to reduce the sentence to less than
the minimum sentence under Section 376(1), IPC. The appeal against his conviction was
dismissed.155
Kandhamal Gang Rape Case 2015
The people were outraged, when a 71 year old Catholic nun was gang raped by eight men in
Ranaghat, Nadia district of West Bengal. Even before the attack, school officials already told
police that they received death threats. On March 26, 2015, two men were arrested for the crime
they have committed.
Bulandshahr Rape Case 2016
The entire nation was jolted by the news of brutal gangrape of the Noida woman and her
daughter. Here are the horrifying details of the shameful incident:-
The shameful act was done by bandits on gunpoint. The incident took place at Dostpur village of
Bulandshahr on Delhi-Kanpur highway. The incident occurred near bypass when the family from
Noida was from travelling to Shahjahanpur on National Highway 91 (NH 91)
As they neared Dostpur village, the robbers who were hiding in the bushes along the road flung
an iron rod at their car. When the driver slammed the brakes and got down to check, robbers
emerged and took the family at gunpoint. The criminals dragged the family out of a car near
Bulandshahr.
Shockingly, 12 criminals gangraped the 35-year-old Noida woman and her 14-year-old daughter
for close to three hours, The robbers isolated four others of the family and gangraped the woman
and her daughter. They snatched Rs 11,000 and some jewellery and fled away,
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The family had started from their Sector 68 home after midnight. They were going to attend the
terahnvi (rituals held 13 days after a death) of a relative. The family managed to reach the nearest
police station and lodge an FIR.Uttar Pradesh Police has claimed to have held three of the
accused involved in the brutal gangrape, even as the Samajwadi Party government came under
intense flak over the incident.156
Kolkata gang Rape 2016
A 25-year-old woman was allegedly raped by four persons in a moving vehicle in Kolkata’s Salt
Lake area Sunday night. After taking turns to rape her, the accused reportedly pushed her out of
the car.
The woman reportedly hailing from Nepal has been staying in the area for the last three years.
According to the complaint lodged with the police, she had left home in an Uber cab around 11
pm on Sunday to visit a coffee shop. She apparently mistook the location and got off near
College More at Sector V.
“She said she was confused about the location and thus sought help from a youth, who was
standing nearby. The youth reportedly said he did not know exactly where the shop was but
would confirm the same from his friends. He then called up someone,” a senior police officer
said.
“Soon, three youths arrived in an SUV. They offered her a lift to the coffee shop. As soon as she
and the youth from whom she asked for directions got into the car, they sped off. The four
allegedly took turns to rape her,” the police officer said.
The complaint stated that around 3 am Monday, the youths pushed her out of the car at Baishakhi
More in Salt Lake. There, the woman claimed a taxi driver spotted her and took her to
Bidhannagar North police station. She was then taken to Salt Lake’s women police station and a
complaint was formally lodged. “A case has been lodged. No one has been arrested yet but we
are conducting raids,” said Jawed Shamim, Bidhannagar City Police Commissioner. Sources said
police were scanning CCTV camera footage of the area to identify the vehicle.
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http://zeenews.india.com/news/india/bulandshahr-gangrape-what-really-happened-on-that-night-these-horrifying-
details-will-shock-you-to-the-core_1913763.html
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The woman was admitted to Bidhannagar Sub-Division Hospital, where she underwent a
medical test. Sources said prima facie doctors have confirmed rape.
Officials at the Nepal Consul General said they were in touch with Bidhannagar
Commissionerate.
“It is a sad incident. We are in touch with the police,” said Sita Basnet, acting Nepal Consul
General.
Another official said that it is yet to be established whether the woman hailed from Nepal. “We
are awaiting a confirmation. If her nationality is confirmed, we will write to the West Bengal
government, requesting for a speedy investigation,” he said.157
Moti Bagh Rape Case 2016
Four years after Nirbhaya’s 16 December 2012 rape case, a 20-year-old girl was raped in a car,
bearing a sticker of the Ministry of Home Affairs in Delhi’s Moti Bagh. Delhi Police has arrested
the driver Aman Kumar.
The girl was waiting for a bus near the All India Institute of Medical Science (AIIMS) when a
man in a car, owned by a Central Industrial Security force (CISF) Head Constable, offered her a
ride. Once she got into the vehicle, she was allegedly molested. When she resisted, the driver
stopped the car and raped her. The rape survivor approached a Police Control Room (PCR), who
then subsequently formed teams to arrest the accused, reports The Hindu.158
Esther Anuhya Rape Case 2016
Esther Anuhya, known to all as Anu, was a 23-year-old software professional. She had graduated
in 2012 with a B. Tech in electrical and communications engineering from the Jawaharlal Nehru
Technological University in Kakinada, about 150km northeast along the Andhra Pradesh coast
from her home of Machilipatnam. In the way that ordinary things seem to take on new meaning
in the wake of a tragedy, the JNTU website carries these suddenly pregnant words from
157
http://indianexpress.com/article/india/india-news-india/park-street-rape-kolkata-25-year-old-from-nepal-
gangraped-in-salt-lake-2826229/
158
https://www.thequint.com/india/2016/12/16/gril-raped-in-a-moving-car-bearing-mha-home-ministry-sticker-in-
delhi-moti-bagh-police-arrest-man-2
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Jawaharlal Nehru: “A university stands for humanism, tolerance, reason, progress, adventure of
ideas and search for the truth.”
In her final year, Tata Consultancy Services (TCS) came to JNTU to recruit fresh graduates.
They offered jobs to Anu and her two college roommates, Sushma and Melissa, as well as to
several others on campus. After they graduated, they all went to Thiruvananthapuram for a three-
month training stint. When that was done, they were posted to different cities. Some went to
Chennai, some to Bangalore; Esther came to the Mumbai office.
After over four years with her roommates, it was hard to part. But at least they were in the same
company and would anyway be in touch on the phone. Anu’s father came to Mumbai to help her
find a place to stay, in Andheri. It was close enough to the office. Not more than 15 minutes
away lived relatives, the Ramanas,
Sanap, 29, a driver employed in Nashik, had offered Anuhya a lift to her hostel in Andheri
(West) early on the morning of January 5, 2014, when she arrived at the Lokmanya Tilak
Terminus (LTT) after spending Christmas and New Year with her family in Machilipatnam in
Andhra Pradesh. She was employed at the Tata Consultancy Services.
He assaulted her when she protested that he was taking her the wrong way. He then raped and
killed her in the bushes in a deserted area off the Eastern Express Highway in Bhandup before
setting fire to her body with petrol.
Judge Joshi said in her order that Sanap had pre-planned the murder, observing that “the
planning started in his mind as he saw a prey”.The judge relied on the testimony of Ganesh
Shetty, a parking attendant at LTT, to conclude that Sanap had forced Anuhya to accompany
him. Shetty was the last person to see the duo ride away on Sanap’s motorcycle at 5.15 am. The
judge concluded that a one-minute conversation between Sanap and Anuhya before leaving
proved “she must have refused to ride on the motorcycle, but he took her stating he too was
going towards Andheri and would drop her for a meagre amount and under duress, as he put her
bag on the motorcycle, she must have ridden the bike,” she observed.
Anuhya’s decomposed remains were discovered by her father S J S Prasad on January 16 and a
postmortem had concluded she died after her head was banged on the ground and she was
smothered. “He had applied such force while committing rape, had caused genital injury, which
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is one of the causes of death associated with other injuries. The pain she had experienced cannot
be explained,” the order said.
Describing the crime as “cruel”, “inhuman”, “brutal” and “diabolical”, the judge said Sanap
committed it “to satisfy his lust”, adding that “he forcibly raped a defenseless woman and
eliminated her life, which is the ultimate insult of womanhood”.
Sanap’s confession of the crime to his friend Nandkishor Sahu and subsequent threats issued to
him, Judge Joshi said, indicated he felt no remorse.Anuhya’s rape and murder, the judge ruled,
had placed the safety of working women in Mumbai in danger. “It created a dent in the belief
that Mumbai is still a safe city for women,” the judge observed.159
Judge Vrushali V Joshi also sentenced Sanap to seven years in prison for kidnap, robbery and
destruction of evidence, in addition to paying a compensation of Rs. 50,000 to Anuhya's
family.A special women’s court awarded Chandrabhan Sanap the death sentence for the murder
of software engineer Esther Anuhya (24). The court also sentenced him to life imprisonment for
her rape. Judge Vrushali V Joshi also sentenced Sanap to seven years in prison for kidnap,
robbery and destruction of evidence, in addition to paying a compensation of Rs 50,000 to
Anuhya’s family. “The case falls in the rarest of rare category. Hence, he shall be hanged by his
neck till death,” Judge Joshi said.In the five-page judgment, Judge Joshi drew parallels with the
gangrape and death of a 23-year-old physiotherapist in Delhi in 2013, stating that “social
abhorrence and national shock created by this incident was parallel just to the one evoked by the
Nirbhaya incident in Delhi”.160
159
http://www.livemint.com/Sundayapp/ri53cEzNRVPPrtOrXvnKgJ/A-daughter-lost-The-tragedy-of-Esther-
Anuhya.html
160
http://m.hindustantimes.com/india/rarest-of-rare-cases-are-not-so-rare-in-india-now/story-
JxnTLyJ4tPlDBnHhatCcIL.html
143
CHAPTER- 7
144
CONCLUSION AND SUGGESTIONS
The year 2012 had been nightmarish for women across India. The year began with the rape of
two year old toddler in January, by a 25-year-old daily wage worker who lived in the vicinity in
Colva. The worker raped the child after finding her alone at home and absconded immediately.
The police who had initially registered the case as molestation later changed it to rape upon
finding medical evidence.161 In February, 38 year old Suzette Jordan was gang raped in a moving
car as she was returning home from a night club. The prime accused was still roaming free, with
an administration in denial mode. In July, in a horrific incident a young girl was groped and
harassed in public on the streets of Guwahati to the open gaze of passers-by, none of whom
stepped forward to stop the harassment. The entire episode was filmed and broadcast by a local
Guwahati television channel. Moments after the video was uploaded in the net, it went viral.
With pressure from national news media the journalist lost his job and the police claimed their
search for the accused was “still on”. In August, a 26-year-old PHD student studying in IIT
Powai was raped on the campus of India’s premier Institute of Technology in Mumbai. Civil
society raised its voice but the case was still pending.
The month of September saw three harrowing nights for the women of India. While a young
school girl was returning from her evening tuition classes, she was raped in the streets of Dabra
in Haryana, a state known to have the lowest number of women. Struggling to get justice for
their daughter, when the family approached the police, they refused to file a rape complaint,
blaming the girl’s character. Unable to protect the “honour” of his daughter, the father committed
suicide. Within days of this incident, the region witnessed the gang rape of a married woman.
She was also described as being a woman of “loose character” by the police. A third incident
followed when a young school girl was raped in broad daylight. In October, two young girls
were raped by their college staff in their institute in Rajasthan. Like many others they had come
to the institute to round off their education and to establish their careers after finishing their
studies at Banasthali Vidyapeeth.162
161
TNN, 25-year-old rapes toddler in Colva, Times of India, 22 January, 2012, Source:
http://articles.timesofindia.indiatimes.com/2012-01-22/goa/30652725_1_colva-rapes-police-station
162
Debarati Mukherjee, 2012: A terrible year for women in India, DW, 3 January, 2013, Source:
http://blogs.dw.de/womentalkonline/2013/01/04/2012-a-terrible-year-for-women-in-india/
145
There were also others, ranging from toddlers to school girls to college students to working
women to married middle aged women. Women across all ages, locations and socio- economic
statuses were equally unsafe in India.
Finally the year ended with Nirbhaya, shocking the nation, waking it up to the brutality that had
never reached such heights earlier. The Verma committee had to give its recommendations
keeping in mind all cases of sexual assault in the recent past. It was not just one Nirbhaya who
died fighting her rapists. That was the story everywhere.
The outcome of this research work is that in every case where the death penalty is given to the
accused, the victim is killed by them. So we can say that the death sentence is not for rape but for
the murder of the victim.
The Lesson Learnt
The Delhi rape case came out with certain lessons for the State and society. First, it indicated that
the existing laws are not capable to counter the problem of rising crimes against women. The
reasons are primarily three: one, many acts which constitute crimes do not find mention in the
Criminal Code: second, the punishments are inadequate to restore the harm perpetrated; and
thirdly, the implementation of the law suffers from serious infirmities. As regards the first aspect,
it is everybody’s knowledge that the contemporary technology driven society is witnessing
innovative and intrusive acts of violations of personal liberty and freedom. Thus, eve teasing,
stalking, social networking scandals, mms scandals, acid throwing, honour killings and many
more are on a gradual increase. It is as if the entire society is predating on female vulnerability.
Unfortunately, the laws are too inadequate to take care of the entire scenario. The archaic
provisions of rape and outraging of modesty in the Penal Code. Secondly, the punitive element
of the law suffers from inadequacy. Though the Amendment Act of 1984 is expected to address
all the rising forms of violence which definitely, falls short of the requisite criteria.
Secondly, the punitive element of the law suffers from inadequacy. Though the Amendment Act
of 1984 is expected to address all the rising forms of violence which definitely, falls short of the
requisite criteria sought to introduce life imprisonment in aggravated forms of rape, yet a study
of case laws reveal that punishments generally remain limited to 7 years and in some cases, even
reduced, given the “peculiar facts and circumstances of the case”. A good illustration in hand is
146
the Aruna Shanbaug case. Third is the issue of the implementation of law. There are serious
lacunas in the letters of law and its process of implementation. Today, every citizen of the
country is well aware of the fact that justice is fleeting so to say. There are more chances of
getting away with a crime than it being detected and brought to justice. Therefore, the chances of
gaining heavily outweigh the losses arising from crime commission. That itself is a big booster
for the criminal mind. The Police who have been entrusted with the task of maintaining the law
and order and ensure the security of its citizens have shamelessly failed in its task of which
recently shot into limelight in the backdrop of mercy petition for euthanasia. In the case, the
victim has been lying lifeless in a permanent vegetative state in the hospital for the last 37 years,
after a violent rape by a man who was sentenced to 7 years. If media reports are to be believed
the accused served his sentence, came back to society to take up another job, start a family and
live happily ever after. The punishment vis-à-vis the harm perpetrated lacks proportionality and
thereby, is bound to make crime a beneficial enterprise.
Third is the issue of the implementation of law. There are serious lacunas in the letters of law
and its process of implementation. Today, every citizen of the country is well aware of the fact
that justice is fleeting so to say. There are more chances of getting away with a crime than it
being detected and brought to justice. Therefore, the chances of gaining heavily outweigh the
losses arising from crime commission. That itself is a big booster for the criminal mind. The
Police who have been entrusted with the task of maintaining the law and order and ensure the
security of its citizens have shamelessly failed in its task of detecting crimes. The inept attitude
of the police and its capabilities of handling the problems confronting the society in
contemporary times have posed a big question. Added to that is the fact, that the courts take
years to settle a case. Any accused is well assured that the final judgement, if at all, will come
after a span of two decades, which is time enough to go on with the usual chores of life. Finally,
the judgement, when it comes will have major considerations for the old age, family dependency
or such other factors in the life of the accused thereby bringing it down to the least possible
sentence. A peculiar and obnoxious system of justice acts as a facilitator to the rising crime
scenario. The public outrage indicated that public confidence in the laws and its administration is
at an all-time low and the State must take immediate steps to restore the lost confidence. Public
Confidence in the system of justice is of immense necessity. First, most crimes come to the
attention of the police as a result of a report from the victim or a witness – members of the
147
public. In other words, if members of the public have little confidence in the police response,
they are unlikely to report crimes. Public participation is also critical in the event that a charge is
laid against a suspect. Successful prosecution is generally only possible if the victim (now a
complainant) co-operates and agrees to offer evidence (in the event that the matter proceeds to
trial). Victim participation may directly influence developments in the case; many defendants
plead guilty once they know that the victim is going to testify. In addition, the participation of
other witnesses is often vital in order for the state to secure a conviction. Prosecutions sometimes
fail because witnesses are unwilling to co-operate. Victims and witnesses will only co-operate
with the police and prosecutors if they have confidence in the justice system as a whole, and if
they trust the specific criminal justice professionals with whom they have contact.
On a more abstract level, the justice system must inspire the confidence of the public in order to
ensure its legitimacy. Power can be assigned, but legitimacy and authority have to be earned. The
imposition of (at times severe) legal punishment requires the community’s confidence in the
legitimacy of the institution that inflicts punishment. What is meant by the term ‘legitimacy’? It
can mean a number of things, but the notions of fairness and integrity are central to the concept.
Suggestions
Based on the findings of the study following suggestions emerge for consideration:
1. Timely Recording of FIR
Sec. 154 of the Cr.P.C provides for recording of the First Information Report. It needs to be
evaluated that whether police has an obligation or not to investigate allegations of rape before
registering an FIR.
It is a fact that police investigation takes time and it might undermine the purpose of recording
the FIR. As amended by Criminal Law (Amendment) Act, 2013 Sec. 166A (c) of the IPC
punishes failure to record information under sec. 154 in some crimes including rape with
imprisonment from 6 months to 2 years. The ambitious Crime and Criminal Tracking Network
148
and Systems on which the centre has spent a whooping Rs 2,000 Cr will enable e-filing of
FIR.163
Even though the reform was introduced on April 2, 2013, yet news afloat plenty wherein cops
have refused to file FIR in rape cases and instead offered bribe to the victim.164 It is an appalling
reality that no action was taken against the erring cops. Until the e-filing of FIR becomes
possible, it is required that appropriate action should be taken against non-filing of FIR and not
dismissed as a mere departmental inquiry.
2. Punishment for Non-treatment of Victim
While the newly inserted Sec. 166 B of IPC 2626 Sec. 3, Criminal Law (Amendment) Act, 2013
provides punishment for failure of the management or staff of hospital, private or public, to treat
a victim as punishable with extending to 1 year and fine; the duty on bystander or public servant
to take the injured victim to the hospital is still unclear and unaddressed.
3. Problems with Execution
As discussed earlier, Indian courts are criticised for arbitrary and discriminatory enforcement of
the death penalty as they have failed to lay down a test for the ‘rarest of rare’ case. Further, only
two executions have taken place in last eight years. Convicts awaiting execution violates human
right to dignity. Even though the judgment was delivered in 1994, Dhananjoy had to wait a long
time before being executed in 2004.165
4. Credibility of Fast Track Courts
As amended in 2013, Sec. 309 of Cr. P. C provides that trial of offences under sec. 376 and
sec.376A-D of the IPC must be completed within two months of filing of the chargesheet.
However, the Delhi rape case being prosecuted in fast track courts has already taken more than 9
163
Aparna Viswanathan, A Task only half finished, THE HINDU, at 10, August 28, 2013. However, the programme
will be implemented in 2015 and there are issues of frivolous FIR that need to be addressed.
164
PTI, Another rape: Anger rises, protests spread in Delhi as 5-year-old victim battles for life, THE TIMES OF
INDIA, Apr 19, 2013, available at http://articles.timesofindia.indiatimes.com/2013-04-19/delhi/38673809_1_five-
year-old-girl- infection-police-station.
165
India Carries out Rare Execution, BBC NEWS, August 14, 2004, available at
http://news.bbc.co.uk/2/hi/south_asia/3562278.stm
149
months. Further, in camera proceedings in this case without there being a matter of national
security or privileged communication, have resulted in it being secluded from media attention
thereby reducing public pressure. Therefore, procedural rules must be examined including
grounds for order of in camera proceedings.
6. Retrospective Application of the Amendments
While the law states that an accused can be punished for a crime if it was a crime when he
committed it, what should be done if the law is inadequate to deal with the crime. Then should
the subsequent amendments or later laws be applied to the case? Well, in the present context of
the Delhi rape case the law appeared inefficient to deal with the crime, thus, the court may at its
discretion apply the newly amended criminal law to give enhanced punishment. It is submitted
that the Nuremberg Tribunal, Tokyo Tribunal, International Criminal Tribunal for Former
Yugoslavia and the International Criminal Tribunal for Rwanda were all set up after the crimes
were committed. These international courts applied laws that were formulated post the
commission of the impugned acts and accordingly punished the accused. Thus, state practise
exists at international level of framing a law to address human rights violations.
Some other suggestions:
 Children in all school of the country need education regarding the ill effects and
repercussions of eve-teasing, stalking, rape etc. Also moral education must be a
compulsary part of the school curriculum.
 Provision of dignified life for the rape victim to protect suicides in these cases.
 Effective counseling techniques and mental health intervention should be available for
the victim to deal with the trauma.
 Mental health practitioners help survivor to work through their post-assault disclosure
experiences
 Counselors must personally endure repeated exposure to distress and use their own
feelings of sorrow as tools for therapy and intervention. As such, it is impossible to
escape that kind of work without personal consequences.
150
 Social awareness, sensitization and protection programmes should be a high priority.

Young girls should receive special attention especially from poor settlements and lower
social strata.
 Increasing the literacy level is must for making women aware of her rights and
encouraging her to speak. There has to be definite steps initiated to raise the literacy level
of women and provide them effective access to information and knowledge.
 Women have to avoid submissive nature and fight back, report fast and be extra cautious
about their dignity.
These are some solutions which can help to prevent rape. These solutions cannot do anything
unless we change our mindset. The ultimate truth is that we cannot stop rape but we can try our
best.
151
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Capital Punishment In Context of Rape: A study of “ Nirbhaya Case”

MS. SHALINI SHUKLA FACULTY OF LAW

Asst.Prof. Swami Vivekananda Subharti

I wish her all success in life.

Date: SHALINI SHUKLA

Date: PAYAL RANA

Place: ................. LL.M. 4th sem

Roll No. 150502670000019

Enrollment No. 1006100093

Ll.M. 4th sem

Roll no. 150502670000019

En. No. 1006100093

AIDS - Acquired Immunodeficiency Syndrome

BBC - British Broadcasting Corporation

CBI - Central Bureau of Investigation

CCTV - Closed- Circuit TV

Cr. P.C . - Code of Criminal Procedure

DCP - Deputy Commissioner of Police

FIR - First Information Report

GPS - Global Positioning System

HIV - Human Immunodeficiency Virus

ICCP - International Covenant on Civil and Political Rights

IEA - Indian Evidence Act

IPC - Indian Penal Code

JJB - Juvenile Justice Board

JVC - Justice Verma Committee

LTT - Lokmanya Tilak Terminus

MP - Member of the Parliament

NCRB - National Crime Reports Bureau

NCW - National Commission for Women

NGOs - Non- Government Organizations

PCR - Police Control Room

SSP - Senior Superintendent of Police

STD - Sexual Transmitted Disease

TRP - Television Rating Point

UNICEF - United Nations International Children's Education Fund

USA - United States of America

WCD - Women and Child Department

Allauddin v. State of Bihar, AIR 1989 SC1456…………...………..……………………………33

Anjana Mishra Rape Case ……………………………………………………………………….69

Attorney General v. Lachma Devi {1989 SCC [CRI] 413………………………………………30

Bahraich Rape Case……………………………………………………………………………...70

Balwant Singh v. State of Punjab, 1987 Cri.LJ 971 (S.C.)………………………………………36

Bhat Prabha Ruda, (1961) 2 G.L.R. 251………………………………..………………………..35

Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684……………………….…114

Bhupinder Singh v. Union Territory of Chandigarh(2008) 3 Cri.LJ 3546 (SC)…….………….116

Bulandshahr Rape Case 2016……………….………………………………………………….139

Chairman Railway Board v. Das, A.I.R. 2000 S.C. 988,……...…………………………………49

Deena and Ors. Vs. Union of IndiaAIR 1983 SC……….……………………………………….30

Ediga Anamma v State of Andhra Pradesh AIR 1973 S.C. 774………………………………...31

Esther Anuhya Rape Case 2016…………………………………………….………………….141

Fateh Chand vs State of Haryana, (2009)15 SCC 543 …………………………………..…….115

Geeta Chopra Rape and Murder Case ………………………………………………………….68

Guddu vs State of Mp,(2007)14 SCC 454, 2006…………….…………………………………115

Harpal Singh AIR 1981 SC 361…………………………………...……………………………115

Imrana Rape Case ……………………………………………………………………………….70

Jalgaon Rape Case……….………………………………………………………………………68

Kaini Rajan vs. State Of Kerala 2013 (9) SCC 113…………………………………………....136

Kamduni Gang Rape and Murder case 2013………………………………………..………….137

Kandhamal Gang Rape Case 2015……………………………………………………………..139

Kehar Singh v. The Union of India, (AIR 1962 SC 955)………...……………………………..34

Kolkata gang Rape 2016………………………………………………………………………..140

Machhi Singh v. State of Punjab, (1983) 3 SCC 470…………...……………………………29,33