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A Deep Social Bias Marks the Judiciary's Response to

Rape in India
MEENA MENON

Meena Menon is an independent journalist and the former bureau chief of The Hindu,
Mumbai. She is the author of Riots and After in Mumbai, Reporting Pakistan, and has co-
authored A Frayed History: The Journey of Cotton in India.
Vol. 55, Issue No. 3, 18 Jan, 2020

Why is it that some rape cases go on to evoke nationwide anger, while some die silent
deaths?

In November 2019, a woman veterinarian in Telangana was gang-raped, murdered and her
body burnt by the four alleged rapists (New Indian Express 2019). As the news came to
light, outrage over the dire lack of women's safety erupted throughout the country.
Reminiscent of the public anger felt at the time of the 2012 Delhi rape case, there was a
clamour for the blood of the accused. Following this, on 6 December, the nation woke to the
news that the four accused in the case had been shot dead by the Telangana police as they
were trying to escape (India Today 2019). The news of the encounter was welcomed with
much celebration.

While such extrajudicial killing cannot be justified, its public acceptance stems from the fact
that rape trials in India are a farce. The National Crime Records Bureau's 2017 statistics
stated that a total of 32,559 cases of rape were registered in India (Livelaw 2019). However,
only a third (32.2%) of these cases ended in a conviction (Hindu 2017). In 2018, there were
a total of 33,977 rape cases. The conviction rate for rape in 2018 was 27.2%— lower than
the rate in 2017.
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Thus, the brutality of the Hyderabad case or its aftermath is by no means an outlier. In yet
another case that went on to garner national attention, that is, the 2017 Unnao rape case in
Uttar Pradesh, former Bharatiya Janata Party (BJP) member of legislative assembly (MLA)
Kuldeep Singh Sengar was sentenced to life imprisonment by the trial court. However, the
course of the trial was marked by Sengar’s blatant attempts to cover up his tracks. His
brother beat up and threatened the survivor’s father, who was later arrested on allegedly
bogus charges and died in custody due to injuries sustained during the beating. Moreover,
as no action had been taken by the authorities and the survivor was not allowed to openly
name her assaulter, she tried to self-immolate in 2018. Eventually, though, the former MLA,
in addition to being convicted of rape, was also formally accused of tampering with
evidence, criminal intimidation and attempt to murder (Hindu 2019).

The impunity with which Sengar’s actions were carried out (or rather, the impunity with
which he was able to carry them out) provides ample proof of the insensitivity and lethargy
currently marking the judicial system when it comes to handling cases of rape or sexual
assault. The 2018 Kathua rape case where a little girl was raped and killed in a barbaric plot
was ignored by authorities when it happened. The incident polarised communities and went
through many administrative twists and turns before the charges were filed against seven
men, six of whom were later convicted in June (NDTV 2018). Before that, the 2012 Delhi
rape case was perhaps one of the only few cases in recent history that was processed until
conviction within nine months (Times of India 2013).

However, despite such cases which were able to evoke nationwide anger and mobilise
public support, the conviction rate has remained meagre in comparison to the number of
cases reported (and would be worse if compared to those that go unreported). In an attempt
to counter the systemic rot and work towards a more wholesome amendment of the criminal
justice system, the Supreme Court has registered a suo motu petition and sought a status
report on investigations into rape cases, medical examinations and the speedy trials of such
cases (Livelaw 2019).

The reality, though, remains that currently, only those rape cases that have come into
national limelight have been able to demand an expedited judicial process or even just a
completed one. There was no such effectiveness shown during the 2019 Rajura case, where,
unknown to the world, minor girls were being drugged and raped over months in a private
residential school for Adivasi children. The incident came to light in early 2019 and took
place within the premises of the Infant Jesus English Public High School, run by Subhash
Dhote and his brother Arun Dhote, both political heavyweights from the area. After the case
came to light, the school was blacklisted and disqualified from the "Namankit Yojana." Yet,
the management of the school got permission from the high court to continue running it.
Moreover, though the government had asked for strict action against the school, nothing yet
has been forthcoming (Times of India 2019a). The case was registered under Section 376, A
and B of the Indian Penal Code, Section 4 of the Prevention of Children from Sexual Offence
Act (POCSO) 2012, as well as the Scheduled Caste and Scheduled Tribe (Prevention of
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Atrocities) Act 1989 on 12 April 2019 at the Rajura Tehsil police station (Firstpost 2019).
Five persons were arrested, two of the hostel superintendents, two women caretakers and a
security guard, other than the medical consultant at the school who treated the girls and
yet, never found anything amiss.

Later, Subhash Dhote and his brother were arrested in another case of sexual abuse
reported from another institution run by him. However, despite this, Dhote was given a
ticket by the Congress to contest the assembly polls, which he won by a narrow margin.
Later, he claimed that he has no criminal cases in his election affidavit. This has been
challenged in an election petition filed by his opponent Wamanrao Chatap of the Swatantra
Bharat Paksh, in the Nagpur bench of the Bombay High Court, which will come up for
admission in January (Times of India 2019b). Meanwhile, the Crime Investigation
Department (CID) is still investigating the case, and 17 girls have come forward to record
their statements and undergo medical examinations. Needless to say, it has not been easy
for them or their families, and some girls do not want to speak up. The agency is planning to
file a supplementary charge sheet after which the trial can begin in a POCSO court.
Meanwhile, three of the accused have been released on bail, much to the consternation of
the parents and the girls.

The Rajura case did not make national news, it was too far away from the capital and
involved Adivasi girls. Though there were local protests, there was no nationwide outrage,
no candlelit marches for the girls, some who were as young as eight or 11 years of age, and
no demands for a Central Bureau of Investigation (CBI) probe or a speedy trial. It is a sad
reality of our country that only high-profile rape cases are brought to justice quickly, like
the Delhi rape case or even the Unnao case for that matter. Cases such as the Rajura one do
not even see the beginning of a trial, even eight months after the incident was exposed
(Firstpost 2019).

Similarly, in 2014, in the case of a gruesome rape and murder of a minor in Parner in
Maharashtra, three men were sentenced to death in 2017 (Kothari 2017). The case had
Ujjwal Nikam, the celebrity lawyer, for the prosecution who pressed for the maximum
penalty. Several politicians made forceful demands for a speedy trial and justice for the 15-
year-old schoolgirl. However, there was no similar chorus for justice for the 17 Adivasi girls
(or even more) from Rajura.

In fact, in Chandrapur, Elgar Pratishthan, a local organisation had to approach the high
court to make sure the evidence was recorded by the police promptly. There was a delay (as
well as an unwillingness on the side of the administration) in conducting the medical
examination of the young girls. Moreover, they had been made to wait in the police station
for over a day— not an uncommon practice even in cities like Mumbai (Firstpost 2019).
Among the many precedents set by the 2012 Delhi rape case was that the public outcry and
pressure led to the accused being arrested in 24 hours and the case getting wrapped up in
nine months through a fast track court. It led to a judicial committee, headed by former
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Chief Justice J S Verma, which made several excellent recommendations for ensuring
quicker trial and enhanced punishment for criminals accused of committing sexual assault
against women (PRS Legislative Research 2013). In 2018, the Supreme Court approved a
compensation package for rape victims and acid attack survivors (Economic Times 2018).

However, the urgency to deliver justice for "Nirbhaya" and the Kathua victim remain an
exception and one fails to see the same alacrity to investigate, arrest and try rape cases in
the rest of the country. To draw attention to the monstrous injustice of it all, it is the rape
victims who try to kill themselves or escape to other states so that they are not harmed, or
have to file petitions in the Supreme Court for justice as has happened to another survivor
from Unnao. In the matter where Sengar was the accused, the case was transferred to Delhi
from Unnao at the behest of the Supreme Court. The survivor was injured and two of her
aunts were killed in an accident, which is also suspected to be engineered by Sengar while
in jail. In the infamous Khairlanji massacre case where a family was hacked to death in
Bhandara district in 2006, the police did not even bother to conduct a medical examination
of the two women who were killed. Though their bodies were exhumed later, the evidence
was lost (Buckwalter 2006).

The Nirbhaya Fund that was set up for women’s safety also remains under-utilised,
according to several reports (Basu 2019). An official statement said that the Nirbhaya
Central Victim Compensation Fund (CVCF) was funded under the Framework of Nirbhaya
Fund to support states and union territories for their Victim Compensation Scheme (Press
Information Bureau, 2019). The total cost of the project is Rs 200 crore. The CVCF is a one-
time grant of top-up funds to the states and union territories, released at the direction of the
Supreme Court. The previous batch of funds was released in 2016–17. No further activity
remains on part of the central government. Further, the Supreme Court, in an order dated
11 May 2018, had directed all states and union territories to modify their victim
compensation schemes in terms of the scheme prepared by the National Legal Services
Authority. However, inefficiency marks this area of judicial process as well.

The question to raise is why, after so many years, India lacks an efficient and speedy system
to try cases of rape, with minimal damage to the survivors’ sense of privacy and dignity.
While the two-finger test has been dispensed with by the courts of law, women still have to
narrate their trauma before strangers throughout the trial, which itself takes years to end. It
is these delays that wear out the survivors and their testimonies. Also, as in the Rajura case,
parents of the children feel that the end of justice cannot be served merely by the monetary
package. They see the accused out on bail and a case where the trial is yet to begin and
wonder whether proportional punishment for the heinous crime has been meted out. In
cases such as the Rajura one, due process is not followed or even initiated more often than
not, because the survivors are Adivasi or from different castes, whereas the perpetrators
hold political weight and come from social capital.

Access to justice has to be equal for all. It is a fundamental right, and women need not have
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to burn themselves, plead with the Supreme Court, or dread delays, to gain it.

References:

Basu, Sanjoy, Neeraj Kumar and Shashi Shekhar (2019): “Nirbhaya Fund Money Isn't Being
Spent, Women's Security Schemes Not Implemented,” 14 April, Wire,
https://thewire.in/women/nirbhaya-fund-money-isnt-being-spent-womens-security-schemes-n
ot-implemented.

Buckwalter, Sabrina (2006): “Just Another Rape Story,” 29 October, Times of

India, https://timesofindia.indiatimes.com/india/Just-another-rape-story/articleshow/222682.
cms.

Economic Times (2018): “SC Nod for Compensation Scheme for Sexual Assault, Acid Attack
Victims,” 11 May,
https://economictimes.indiatimes.com/news/politics-and-nation/sc-nod-for-compensation-sch
eme-for-sexual-assault-acid-attack-victims/articleshow/64126911.cms?from=mdr.

Firstpost (2019): “In Rajura Rape Case, 17 Minor Adivasi Girls and Their Families Await a
Seemingly Elusive Justice,” 12 December,
https://www.firstpost.com/india/in-rajura-rape-case-17-minor-adivasi-girls-and-their-families-
await-a-seemingly-elusive-justice-7760811.html.

India Today (2019): “4 Hyderabad Rape-Murder Accused Killed, Chorus of Support for Cops:
10 points,” 6 December,
https://www.indiatoday.in/india/story/hyderabad-rape-case-police-encounter-accused-shot-de
ad-10-points-1625762-2019-12-06.

Kothari, Vishwas (2017): “Death Sentence to Three in Parner Rape and Murder Case,” 10
November, Times of
India, https://timesofindia.indiatimes.com/city/pune/death-sentence-to-three-in-parner-rape-
and-murder-case/articleshow/61596648.cms.

Livelaw (2019): "Justice To 'Rape' Victims: SC Takes Suo Motu Case To Assess The Working
Of System In Sexual Offences [Read Order],” 18 December,
https://www.livelaw.in/top-stories/delay-in-delivering-justice-to-rapevictims-sc-takes-suo-mot
u-case-to-assess-the-working-of-system-in-sexual-offences-150930.

NDTV (2018): “8 Accused Plead Not Guilty, Demand Narco Test as Kathua Rape Trial
Begins,” 18 April,
https://www.ndtv.com/india-news/kathua-rape-case-8-accused-plead-not-guilty-demand-narc
o-test-as-trial-begins-1838451.
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New Indian Express (2019): “Telangana in 2019: India Boiled Over Brutal Gang Rape-
Murder of Hyderabad Vet,” 27 December,
https://www.newindianexpress.com/states/telangana/2019/dec/27/telangana-in-2019-india-b
oiled-over-brutal-gang-rape-murder-of-hyderabad-vet-2081578.html.

Press Information Bureau (2019): “Nirbhaya Fund,” 19 July, Ministry of Women and Child
Development, Government of India,
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579539.

PRS Legislative Research (2013): “Justice Verma Committee Report Summary,”

http://prsindia.org/report-summaries/justice-verma-committee-report-summary.

Hindu (2017): “Only 32% of Rape Cases Ended in Conviction in 2017,” 16 December,
https://www.thehindu.com/news/cities/Delhi/only-32-of-rape-cases-ended-in-conviction-in-20
17/article30314921.ece.

Hindu (2019): “Unnao Rape Survivor Accident: BJP MLA Kuldeep Singh Sengar among 10
Named in FIR,” 29 July,
https://www.thehindu.com/news/national/unnao-rape-survivor-accident-bjp-mla-kuldeep-sing
h-sengar-among-10-named-in-fir/article28748925.ece.

Times of India (2013): “Justice after Just Nine Months,” 15 December,

https://timesofindia.indiatimes.com/city/delhi/Justice-after-just-nine-months/articleshow/274
37425.cms.

— (2019 a): “Dhote Brothers Absent in Rajura Hostel Abuse Probe, CID Serves Notices,” 10
June,
https://timesofindia.indiatimes.com/city/nagpur/dhote-brothers-absent-in-rajura-hostel-abuse
-probe-cid-serves-notices/articleshow/69706043.cms.

— (2019 b): “Two Women Caretakers of Tribal Girls Hostel Held in Rape Cases,” 17 April,
https://timesofindia.indiatimes.com/city/nagpur/two-women-caretakers-of-tribal-girls-hostel-
held-in-rape-cases/articleshow/68912742.cms.

Image-Credit/Misc:

Image Credit: Modified. Canva.

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