The lost opportunity?: Anti rape bill

The Indian media, the social activists and the mainstream political parties like the Congress, CPI (M) & BJP are on the verge of losing a golden opportunity to stem the rising trend of rapes and sexual assaults against women; something that the public opinion has been strongly and overwhelmingly in favour of in the aftermath 2012 December Delhi gang rape case. This statement might be surprising given that the “anti rape” bill is being discussed in its draft form today with a view to do just that and has been discussed widely by the above mentioned groups in an unprecedented discourse about policy in India. The focus of the draft of the so called “anti rape” bill (it is actually Criminal Law (Amendment) bill), that gained momentum in the aftermath of the 2012 December Delhi gang rape case & the subsequent Justice Verma committee (that was tasked to look at existing legislations relating to women’s safety and suggest changes to check crimes against women) has been on specifying & defining new offences as well as on amending criminal laws to provide for greater punishment for sexual violence. The problem with the discourse around the bill as well as government efforts is that even though it quite importantly seek to do the above mentioned it misses a very important aspect of the justice delivery system; that of efficient and effective criminal prosecution to help the rape victims get justice.

The consequences of an inefficient & ineffective criminal prosecution are reflected in the inordinate delays in the trial & completion of rape cases (an average of 10-12 years ; as it is said justice delayed is justice denied) as well the low rate of convictions (averaging approximately 27% nationally) achieved even as an increasing number of rape cases are being registered over the years.

Take for example the status of the progress of rape cases in Delhi. In 2012, the number of convictions out of the 635 rape cases registered in Delhi is a shockingly low figure of 1. As for the rest of the cases, 403 were facing trials, investigations were pending against 348 and two others were discharged.

Consider the statistics on a pan India basis as given in the illustration below courtesy Wall Street Journal


Even as recently as the last two weeks, the Minister of State for Home Affairs in Rajya Sabha quoting National Crime Records Bureau said in a written reply about the trend of rising rape cases even as the convictions rates remained low and stagnant attributed the reasons to

several factors like inadequate and inefficient investigations by investigative agencies, deficiency of proper investigative infrastructure, prolonged judicial process etc

The above two outcomes of prolonged judicial process & low conviction rates are the symptoms of a deeper problem; that of a inefficient criminal prosecution system that is not independent and effective which has not been addressed as part of the bill that will be taken up today.

A 2006 report by Centre of Civil Society highlights similar problems taking the case of Delhi.

“The appointment of prosecutors is also a grey area; politicians, bureaucrats and big lawyers heavily influence the recruitment process. Even though there are many regulations regarding the appointment process, these are often overridden by the Executive, which would much rather have its preferred choices as ad hoc appointees. Prosecutors should be insulated from political pressure and an incentives-based performance approach should be emphasised. Internal audit mechanism to evaluate the standards on which the case was fought should also play a significant role in increasing the overall quality of prosecution.”

The anti rape bill is looking at changes in the criminal law by amending Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Evidence Act. However, none of the proposed amendments in CrPC relate to the aspect of prosecution which is critical to reducing delays in the judicial process and in achieving convictions that will have a deterrent effect on such crimes.

The issue of criminal prosecution has a simple and elegant solution that has been explained by BJD MP from Odisha, Baijayant Jay Panda who has moved a private members’ bill to amend the Criminal Procedure code (CrPC) in a bid to check the alarming trend of criminalization of Indian polity owing to poor criminal prosecution. I am reproducing the relevant text from his article in a business newspaper last month:

“The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.

Furthermore, to ensure that proceedings don’t suffer owing to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the Code of Criminal Procedure, as it exists, calls for “consultation” with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Special public prosecutors are often appointed at the whims and fancies of the government and without adequate reasoning. This is done to suit special interests.

 While commenting on the independence of public prosecutors in India, the Law Commission held in its 197th report that any legislation that permits arbitrary appointment of public prosecutors, without proper checks, would violate Article 14 of the Constitution (the right to equality before the law). Therefore, to ensure free and fair trials in courts, it is vital that the existing provisions of the Code of Criminal Procedure be amended.

My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state and answerable to the home department. It prescribes “concurrence” with the judiciary for the appointment of prosecutors at all levels. It also sets down an objective criterion to gauge the requirement of prosecutors. The Bill will also require a detailed and written explanation from the government about the reasons for each appointment to ensure transparency in the appointment of special public prosecutors.”

Despite the huge public opinion in favour of providing justice to the victims of rapes and sexual offences in the aftermath of the 2012 December Delhi gang rape case, it will be a tragic waste of the immense amount of emotional and intellectual energies expended by the Indian public if the public discourse and government efforts to amend policy does not eventuate in concrete steps to actually ensure justice for rape victims and create deterrents for such crimes. The media can still take up this issue to ensure that they do justice to their role as watchdogs of the Indian democracy and to play a positive role in the creation of a modern liberal democracy in India. Will it rise to the occasion?