Special courts needed

Though the Union Government has maintained discreet silence on whether it favours decriminalisation of sex between same gender persons, which could be termed as gay and lesbian sex, it has opened up its mind in the matter of amending the criminal laws that pertain to rape.

So far rape was considered a crime committed by a man against a helpless woman. But the Union Cabinet approval to make the entire spectrum of provisions concerning rape, taking gay or lesbian sex in its ambit, has ensured that committing the heinous crime will no longer remain confined merely to the lust of men.

Though the Supreme Court is expected to declare its judgment on whether the police could haul up people of unusual sexual orientation under Section 377 (unnatural sex) of the Indian Penal Code (IPC), the Union government seems to be satisfied and it has included the same offence in the category of a grave act for which stringent punishment of no less than ten years has been specified. Added to it is a clause that  the punishment could be extended up to life imprisonment and also include a fine, subject to various circumstances concerning the demonic act.

Under the amendment, Sections 375, 376, 376A and 376B have been substituted by the existing Sections 375, 376, 376A, 376B, 376C and 376D of the IPC, replacing the word "rape" wherever it occurs by the words "sexual assault".
Why? The executive’s intention is clear that under the garb of "gender neutrality", criminal laws have been modified to bring into one basket all sex-related offences at par with the constitutional guarantee that no one shall be discriminated against on the basis of sex, colour or race.

However, it is to be seen whether the criminal courts would be careful in differentiating a case of teasing from the serious charge of rape.

The term rape itself has undergone many changes. It is no more legally important that penetration is a must for establishing the charge of rape, which a former Chief Justice of India AS Anand says is "an act that is against humanity and worse than murder for it kills the self of a helpless woman".

Around the time when the Union Cabinet-approved amendments in the sex related laws is making them gender neutral with a bit of extra punishment by a court of law, the country’s crime research organisation offered a gory picture of what is actually going in different big and small cities and villages of this vast land.

With 24,206 cases in 2011, rape cases  jumped alarmingly by a whopping 873 per cent from 1971, when the National Crime Records Bureau first recorded a case of rape.

In proportion to the population growth since then, this sharp degeneration does not match the percentage or statistics, though increase in crime cannot be judged by an increase of population in any given civil society. A crime remains a crime and victims remain silent sufferers due to the increasing insensitivity among law enforcement sleuths and administrators.

Tragically, there were 9,398 cases of rape involving children in this period. Kidnapping and abduction was the second biggest crime in the country. It is an irony that the conviction rate in 2010 for violent crimes such as attempt to commit murder, rape, riots, molestation et al was a meagre 27.7 per cent.

The conviction rate for crimes against women in the same term was 27.8 per cent. And, the conviction rate for all cognisable cases under the IPC was 40.7 per cent.

What it means is that as much as 62.2 per cent of alleged rapists were let off for various reasons and considerations including that "the prosecution has failed to establish the charge beyond doubt’’.

The fact remains that in the eye of the law, 62.2 per cent tormented women have been left without any legal recourse to seek justice.

One wished that the Union government that boasts of taking extraordinary steps for empowerment of women and the weak, had examined the justice delivery system and the pathetic rate of conviction in cases of crime committed against women.

Recently, the Supreme Court observed that rape or an attempt to rape is a crime "not against an individual but a crime which destroys the basic equilibrium of the social atmosphere’’.

It has been said that the executioners of law must remain static and be proactive during the prosecution of criminal cases, particularly those against women and children, as the victims who are also the complainants, are made to face humiliations by the defenders of the accused at the time of recording their testimonies by the court.

Justice is expected to be blind as to who is an accused, but it must not remain a sitting duck when the poor victims of a crime are made to suffer due to the fault of the prosecution of the police.

Therefore, the apex court has also said that it must be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation.  "One’s physical frame is his or her temple. No one has any right of encroachment,’’ it said.

It’s not the victim alone but also his or her family that suffers. This suffering creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be necessarily answered and respected even in awarding  the punishment.
The Union Cabinet that holds the purse which doles out money for the judiciary ought to have decided that more special courts would be set up only for taking up cases relating to sexual offences.

Speedy dispensation is a hallmark of the rule of law. It is the rule of law alone that has protected the country from turning into an anarchist state.

If the rule of law is harmed due to the time spent in inaction by the executive, there could be more instances of people resorting to extra-judicial mechanism to avenge their grief. And that would only make matters much worse!