Row Over Rahul Gandhi's 'Rape' Remark: Are We Forgetting the Real Problem Here?

Even the law cannot penalise Rahul Gandhi for refusing to divulge such information, legal experts say.

Congress leader Rahul Gandhi addressing a public rally at the end of party's Bharat Jodo Yatra, in Srinagar.

(Photo: PTI)

In 2020, India registered an average of 77 rape cases daily. In 2021, the figure was 86. This information does not emanate from a WhatsApp forward or internet clickbait. It comes from the National Crime Records Bureau (NCRB) — a government agency responsible for collecting crime data.

It is also hard to contest the fact that not every sexual violence survivor likes to go to the police. Many don’t. According to the National Family Health Survey-5 (2019-21), only 14% of women who have experienced any type of physical or sexual violence came out and sought help. In 2018, a Mint report comparing (then available) National Family Health Survey (NFHS) data with that of the NCRB, said that approximately 99% of sexual assault cases went unreported.

The reason for this could range anywhere from fear of stigma, shame, intimidation and blame, to difficulty in filing a police report. 

Why Women Don't Speak Up: A Few Examples

Sample these: As per a July 2018 report (The Indian Express), the Gujarat High Court had to remind the state government that it was “duty bound” to carry out a satisfactory probe in an abduction and gangrape case. The survivor’s counsel had alleged that the police registered an FIR only after several attempts, and failed to record her statement before a magistrate.

The survivor also accused a senior police official of threatening her during the questioning, as well as of asking inappropriate questions. Shortly afterwards, the Ahmedabad Police Commissioner informed in a statement that, owing to the allegations, the official in question had opted out of the investigation, and that it would now be carried out by a special team under the police commissioner's own supervision.

As per a December 2019 report (PTI), a Delhi court reportedly asked a Station Head Officer (SHO) to explain in writing why action should not be taken against him for non-registration of an FIR. The survivor in this case was allegedly raped and filmed in an obscene manner by the accused.

Besides the purported issue with the police, the survivor in the Delhi case had also said that some other persons had showed up at her home and threatened her in order to make her withdraw her police complaint.

In 2014, a woman in Madhyamgram, West Bengal, was allegedly gang-raped for the second time after she lodged a police complaint.

But these are just two examples of the many hurdles, harassment and threats that have reportedly encumbered the path to justice. Additionally, there have been numerous instances of survivors being shamed and shunned by the society. Several of which go un-whispered, not amounting to even a blip in the news-cycle.

The (Not So) Curious Case of Rahul Gandhi's Remark

So when Rahul Gandhi, on his Bharat Jodo Yatra, decides to talk about how some women told him that they have been raped, but do not want to go to the police about it; one cannot help but wonder: How is this surprising?

And also: why must he be compelled to disclose the details of women who shared something with him in confidence?

Speaking to The Quint on this subject, retired Patna High Court Justice Anjana Prakash said:

“It is easy to believe that women may have in private disclosed their trauma to Rahul Gandhi having found him a forthcoming person, but it is highly unlikely that he would have noted their particulars. Even if he has, I don't think it would be proper for him to disclose their identity, without  their consent since it  would mean breaching their trust and compromising their privacy and probably security too.”

Therefore, the Delhi Police notice to Rahul Gandhi, and their subsequent visit to his home, make very little sense. As does all the political hullabaloo around Gandhi’s immediate silence.

And What Does the Law Say?

Even the law cannot penalise Rahul Gandhi for refusing to make such information public — at least, as long as the survivors who shared their ordeal with him were adults. And there isn’t much to confirm that they weren’t.

The controversial snippet of his speech, that’s going viral on the internet — for all the wrong reasons — can be transcribed and translated as thus:

“The second thing that I want to tell you…Maybe some people won’t like it. When I was walking, you must have seen, several women were crying. Did you see? Do you know why they were crying? Many of those women were emotional on meeting me. But many of them also told me that they have been raped, molested and molested by their relatives.”

No claim of possessing information pertaining to minors in this snippet at least.

And so, as pointed out by Advocate Harshit Anand: “Not reporting of sexual offences against children is a crime under the POCSO Act. But not reporting sexual offences in general is not a crime.”

Pointing out that Gandhi has no legal obligation to convey information about any survivor to the police, Anand added: “Even Section 156 CrPC, which empowers the police to investigate the commission of a cognizable offence does not say that the police has the power to hold someone who has information liable.”

Anand further clarified that “not reporting such information is not the same as abetment of crime or conspiracy or even obstruction of justice.”

This is because abetment entails helping someone commit a crime, conspiracy involves coming together to partner in and perpetuate an illegal activity and obstruction of justice involves willingly interfering with the pursuit of justice. 

None of the above actually appears to have happened in Gandhi's case.

In his address, Gandhi also said:

“When I asked them (the survivors) if I should call the police, they said no…They didn't want to inform the police because they said they would face more issues..."

Even a rape survivor cannot be compelled to lodge a complaint. This is why, even when a complaint is filed years later, no court of law can punish a survivor for not having come forward sooner.

“Reporting a crime is not a compulsion under the Indian criminal law,” Anand reiterated.

On the question of jurisdiction...

Citing Section 156 CrPC, Anand also pointed out that the offence being investigated by the police has to be committed within the said police’s own jurisdiction.

So if Gandhi met these women and gleaned this information in Telangana or Rajasthan or in UP, the first authority that should take cognisance is the police in those states. 

Anand explained: “after taking cognisance, the police in those states has to specifically authorise Delhi Police and say that because this person, who has this information is not in our jurisdiction, you go to him and find out what crime has been committed and what information does he have.”

This becomes especially pertinent as mere video bites of Gandhi claiming that women had come to him and shared their ordeal with him is not evidence enough for police to approach him on their own and demand information, Anand added.

But What Have the Police Said?

The Delhi Police has reportedly said that the intent behind their notice and visit to Gandhi is to secure justice for the survivors.

According to Hindustan Times, Sagar Preet Hooda, Special CP (Law & Order), told reporters on Sunday:

"We've come here to talk to him. Rahul Gandhi gave a statement in Srinagar on January 30 that during Yatra he met several women and they told him that they had been raped... We're trying to get details from him so that justice can be given to the victims.”

And of course, that is noble intent. If the police wants to help make the country safer for women, who can have a problem with that? But, as pointed out by Justice Prakash:

“If the police is really sincere about their intent, the easiest and best way to proceed would be to collect the particulars of such cases from the police stations within the said jurisdiction and act upon that information.”

As per last year’s NCRB report: between 2020 and 2021, India saw a 19.34% jump in rape cases. This begs one final question: what are we waiting for?

The (Real) Need of the Hour?

Perhaps, the need of the hour, more pressing than the need to probe Rahul Gandhi’s remarks, is to probe the instances of sexual violence already registered in the country, and to create an environment that is conducive for registration of cases that aren't. Gandhi may disclose his sources or he may not, but wouldn’t it be much more ideal if the women in question can approach the police directly, preferably with the same confidence that they appear to have approached Gandhi? 

Besides, if an MP can be pestered with such fervent ardour to reveal information that he has little to no agency over, how far behind are social workers and journalists and civil society members? What if someone badgers you to reveal something that you know about a friend, but are not in a position to divulge? What if they ask you to tell a story, down to the last detail, that was never yours to tell?

Nobody can doubt that sexual violence is a reality. Nobody can doubt that it goes unreported. The problem neither starts nor ends with Rahul Gandhi. So let’s target the problem instead of the messenger, eh? For the sake of the survivors, for the sake of all women, for the sake of right to privacy as well as for freedom of speech. Rahul Gandhi’s, as well as our own.