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Perspectives on Crime Against Women1 Volume 4 Issue 3 PERSPECTIVE October-December 2012 Perspectives on Crime against Women1 M.N. Buch Crime and Punishment Seven persons are alleged to have raped a 23-year old community that such a criminal should not be allowed woman in a moving bus in Delhi at about 2130 hours. to escape the noose. The case of Ajmal Kasab is one of The gentleman accompanying the lady was brutally the rarest of rare circumstances and the death penalty beaten up and ultimately he and the lady, who was was rightly imposed and executed. In the case of Afzal unconscious because of repeated assaults on her, were Guru the circumstances are even worse. He stripped naked and thrown out of the bus. The victim masterminded an attack on Parliament, the very of this crime has suffered serious internal injuries and institution which symbolises our democratic polity. Nine was battling for her life in a hospital. The extent of innocent persons, including policemen, were killed by trauma she must have suffered is yet to be assessed, the terrorists and Afzal Guru was rightly given the but it would not be surprising if she is mentally and death penalty, a sentence upheld by the High Court and physically scarred. The gravity of the offence, the sheer subsequently by the Supreme Court. Despite this, for barbarity of the behaviour of the seven accused, has political reasons, he has still not been executed. A delayed shocked the nation and brought angry demands in execution, if it ultimately comes about, is no deterrent Parliament and on the streets to make rape a capital and it can lead to political exploitation by the nation's offence so that people are deterred in future from enemies against our interests. committing this crime. The Indian Penal Code provides Rape is horrible because it violates the body, the mind, the death penalty for a number of offences. Under section the honour and the dignity of the victim and thereby 194 IPC for fabricating evidence which can lead to the is a direct attack on all womanhood. The offence of rape conviction and execution of an innocent person, under is defined in section 375 IPC and is punishable under section 121 for waging war against the State, for murder section 376 IPC. Section 376 provides a minimum prison under sections 302 and 303 and for an offence under sentence of seven years, though the court may award section 27(3) of Arms Act, the death penalty can be an enhanced penalty of anything between ten years to awarded. In cases under section 303 IPC and 27(3) Arms life imprisonment. The penalty for rape is already just Act this is mandatory. The question is how effective has short of death and because life imprisonment for rape been the death penalty to deter murder, treason, etc. is equivalent to the penalty awarded in the vast majority Except in the two types of cases where the death sentence of murder cases raising this penalty one notch to death is mandatory, the trial court has the option of awarding is hardly likely to make any difference. Because a imprisonment for life on conviction. Generally speaking sentence of death and its execution thereafter is the courts avoid awarding the death penalty and the irrevocable the courts would be very reluctant to award Supreme Court itself has ruled that death penalty should it. Murder, that is, permanently depriving a person of be imposed only in the rarest of rare cases. The offence life, will always be a more serious offence than rape, should have been premeditated, preplanned, motivated regardless of what women activists might say. Despite by extreme personal greed, committed with savagery this, generally speaking, in murder cases life which indicates the vengeful nature of the perpetrator imprisonment is the norm and death penalty is the of the crime, or have resulted in such outrage in the exception. Is rape so much more serious than murder 1 This perspective section is a compilation of five articles written by Dr. M. N. Buch in the context of Nirbhaya incident that rocked the nation in December 2012. It also covers a reflection on these articles. Note : IMJ is thankful to the author for his consent to publish his work. IMJ 75 M.N. Buch Volume 4 Issue 3 October-December 2012 that we should insist on a mandatory death penalty in is that cases should be tried with due dispatch. Under rape cases? section 309 Cr.P.C. it is provided that "In every enquiry or trial the proceedings shall be held as expeditiously What deters a person from committing a crime? Is it as possible and, in particular, when the examination of the quantum of punishment or is it the absolute certainty witnesses has once begun, the same shall be continued of punishment in the shortest possible time after from day-to-day until all the witnesses in attendance commission of the offence? Let us take the case of a have been examined, unless the court finds the traffic offence, say, jumping a red light. If a traffic adjournment of the same beyond the following day to offence brings immediate punishment the habit of be necessary for reasons to be recorded". Every court obeying traffic laws becomes ingrained. Most British in India is supposed to follow the same procedure as drivers follow the law faithfully, partly because this is a fast track court, that is, it must hold a day-to-day trial. now a part of their character but also partly because If, however, as is being demanded, there should be they know that there is a very strong possibility of their separate fast track courts for rape, it only means that violation is being noticed and punished. In other words, we accept that our trial procedure is defective and that the fear of penalty does act as a deterrent and ultimately our courts are incapable of dispensing justice. It is leads to obedience of law becoming a habit. If the law alright for murder cases, or a trial for treason, to be is enforced strictly and the offence is punished soon indefinitely delayed. It is only rape cases which must after it is committed, the penalty will have a deterrent be tried swiftly. This is not a proposition acceptable to effect. If detection of the offence, its trial and outcome me because all trials must be expeditious. That is what of the trial are all long delayed, respect for law reduces, the law provides. the delay may itself result in evidence being destroyed Rape cases must be detected and prosecuted vigourously or tampered with and the deterrent effect of penalty and swiftly and an effort should be made to obtain a would be lost. conviction within three months of the offence. The law After the Delhi rape everyone is shouting for fast track already provides for a minimum sentence of seven courts to try rape cases. I have carefully gone through years imprisonment. Awarding the death penalty will the Code of Criminal Procedure and the Rules and not stop rape, but swift and harsh punishment will Orders (Criminal) of the Madhya Pradesh High Court. certainly deter would-be rapists. That should be our The general tenor of the Code of Criminal Procedure objective. An Object Lesson in Government Incompetence When salmon swim against all odds to reach their I often asked villagers why they insisted on marrying spawning grounds no obstruction can stop them. The off their daughters as soon as they attained puberty. huge number of rape cases now being reported in India The universal answer given to my question was that reminds me of this annual migration of salmon. Was the parents of girls felt that as their daughters approach India free of rape till fairly recently and has the crime puberty they become vulnerable to sexual assault and become suddenly endemic? Is it a question of rape rural society was not organised to control this victims now becoming more vocal about the crime phenomenon. Therefore, parents tried their best to have against them and more ready to come forward and prepubescent girls engaged and to be immediately report it? Have social mores and behaviour changed so married at puberty. The argument that the law prohibited much that suddenly there is an upsurge of rape against the marriage of girls below the age of eighteen was not woman and is there both a qualitative and quantitative accepted by the villagers who countered that because difference between the past and the present? Are women the law was unable to protect the girl child, therefore, suddenly more unsafe than before? As a young District family honour demanded that the girl be given into Collector and several years later, both in a senior capacity legal matrimony. The fact that this virtually amounted and after retirement while working in the rural areas, to legalised rape of a young child who had not achieved IMJ 76 M.N. Buch Volume 4 Issue 3 October-December 2012 full majority left most people cold. Here I might point at Vijay Chowk at India Gate and through virtual out that the region where most child marriages took blockade of Raisina Hill, the seat of government. What place was and is northern and central India. Kerala does the demonstrators were demanding is the quick arrest not have this phenomenon at all. Considering how the of the accused, swift trial and condign punishment. northern mindset works, the khap panchayats of There was an element of lynch law in the demand of Haryana and the generally subordinated position of the demonstrators, but that is only to be expected when women in society, one is inclined to believe that there tempers are running high.
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