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Excerpt: Nirbhaya Case Will Assuage a Sense of Retributive Justice

Structural changes in laws introduced after the Nirbhaya case offer a ray of hope to survivors fighting for justice.

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Protestors shout slogans at a candlelight vigil in New Delhi on the first anniversary of the 16 December 2012 Delhi gang rape.
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(Excerpted with permission from ‘Trials of Truth: India’s Landmark Criminal Cases’ by Pinky Anand and Gauri Goburdhun, published by Penguin Random House.)

The capital of our country, New Delhi, built from seven cities, and conquered, pillaged and rebuilt over and over has accumulated a charm of its own. The streets are a mixture of the old and the new, from the shiny new colonies of south Delhi to the old-world charm of the old city, embodying the polarity between modern and traditional attitudes.

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On a cold December night, a twenty-three-year-old medical student from Ballia, Uttar Pradesh, was subjected to a horrific crime on the streets of this very city. What she went through that fateful night shook our very cores and her death questioned our very ability to function as a civilised society. She embodied the ideal Indian woman, planning to give free medical care to the needy, provide for her family, and change the perception that a woman can’t dream big in a traditionally male-dominated society. She was the bridge between the old and the new India, one of the many young people in the country trying to break through the stifling fixity of their lives. She could have been anybody – our daughter, neighbour, friend, sister...

A cold night in foggy Delhi saw Nirbhaya and her male friend returning home after watching the movie Life of Pi at a theatre in Saket, South Delhi. They tried to find an autorickshaw to take them to the outskirts of the city, and even though it was only a 45-minute drive, they could not find transport. Left with few options, they boarded an off-duty bus at about 9.30 pm from Munirka for Dwarka.

It was not late at night by any reckoning; she was not out alone; and they were taking public transport –she had done all the things that women all over the world are told to do in the interest of safety. On the bus were five other male passengers and a male driver. At first, nothing seemed out of the ordinary. But shortly after they boarded the bus, things went very wrong.

Excerpt: Nirbhaya Case Will Assuage a Sense of Retributive Justice
(Photo Courtesy: Penguin Random House)
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The bus deviated from its normal route and its doors were shut. The driver switched off the lights. The male friend of the girl objected when three of the passengers, namely Ram Singh, Akshay Thakur and Mohammed Afroz started misbehaving, asking him why he was with the girl at this late hour: ‘Tu itni raat ko ladki lekar kahan ghoom raha hai?’ An argument began and a scuffle ensued. Little did they know this was no ordinary scuffle and would end up in death and then the resurrection of humanity and our faith in it. The young man was beaten, gagged and knocked unconscious with an iron rod. What happened next beggars description.

According to newspaper reports, the bus was driven around Delhi for over an hour with its curtains drawn. The girl was mutilated, beaten and raped by the men one by one while her friend lay unconscious. The extent of injuries was brutal, the worst being the insertion of an iron rod into her genitals.

After the assault, Nirbhaya and her friend were robbed and thrown out of the moving bus. The Supreme Court judgment mentions the fact that the assailants were exhorting that they should not be left alive.

It Shook the Nation’s Conscience

The impact of the incident was such that it jolted the entire machinery into action – it was as if someone had flicked on a bulb. A mere six days after the incident, a committee headed by a former judge of the Supreme Court, JS Verma, was set up to consider and suggest changes in the criminal law and make it deterrent in nature. The committee was given thirty days to submit its report.

Contrary to precedence, the committee prepared its report in twenty-nine days after considering more than 80,000 suggestions and petitions received by them from the public, jurists, lawyers and various other factions of the society.

The report found that crimes against women were directly linked to failures of the government and the police. The major suggestions of the report were to make rape punishable by life sentence instead of death as it had been seen that the death sentence did not act as a deterrent, and clearing ambiguity over the control of the Delhi police in such cases. The committee, however, did not favour setting the official age of a juvenile at sixteen rather than eighteen.

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Structural Changes in Rape Laws

The Criminal Law (Amendment) Act, 2013, also expanded the definition of rape to include oral sex as well as the insertion of an object or any body part into a woman’s vagina, urethra or anus.

The punishment for rape is seven years at the least and may extend up to life imprisonment. Any man – be it a police officer, medical officer, army personnel, jail officer, public officer or public servant – who commits rape may be imprisoned for at least ten years.

A punishment of life imprisonment, extending to death, was prescribed for situations wherein the rape concludes with the death of the victim, or the victim being in a vegetative state. Gang rape has been prescribed a punishment of at least twenty years under the newly amended sections.

The new amendment defines ‘consent’ to mean an unequivocal agreement to engage in a particular sexual act; clarifying further that the absence of resistance will not imply consent. Non-consent is a key ingredient for commission of the offence of rape.

Thus the brutal gang rape of 2012 led to key structural changes in the way the judiciary now interprets rape laws. Age-old ideas of ‘habitual of sex’ and ‘vaginal penetration’ have been replaced by structures that respond more accurately to how women experience sexual assault. It overrides the chauvinistic mindset of only ‘vaginal penile’ penetration, and targets ‘natural’ and ‘unnatural’ penetrative assault of any nature under the same umbrella.

What Went Wrong

As a hired school bus, the vehicle was not permitted to be on the road at the time of the incident. Had the system been better and the authorities more vigilant, the incident wouldn’t have taken place at all. Also, police vans reached the victims forty-five minutes after they were thrown from the bus.

The Delhi government did take certain serious steps to remedy the situation, but it took two years to do so.

By 2014, GPS tracking systems were installed in 6321 Delhi Transportation Corporation (DTC) buses, 45,000 autos and 5549 chartered buses.

But the only overall measure that was successful to a certain extent was the DTC’s night service system, which increased its capacity from forty-two to eighty-five buses in the year 2014.

In 2015 the Central government released Rs 125 crore from its Nirbhaya Fund for installation of CCTV cameras in DTC buses. A year later, the transport ministry issued a draft notification, making it mandatory for all transport vehicles with a seating capacity of over twenty-three passengers to have CCTV cameras connected to GPS, so as to be monitored by the local police control room. In the recent railway budget, Rs 700 crore has been allocated from the Nirbhaya Fund towards the installation of CCTVs in trains, specifically long-distance ones.

Gender inequality is the primary tumour of our society, and rape, trafficking, child marriage, female foeticide and honour killings the metastases. I believe that in India, the problem is not a lack of laws, but the manner in which they are implemented.
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Nirbhaya Case: A Ray of Hope

Four-and-a-half years later, the ‘Nirbhaya case’ is a touchstone of almost mythical proportion. No single crime has resulted in as much law making and law amending as this one. The Nirbhaya judgment, to some extent, will assuage a sense of retributive public justice. In a country where justice has always been delayed, the pronouncement of this judgment in a time-bound manner may serve as a ray of hope. And with the launch of the Good Samaritan law, there is the expectation citizens will step forward and help those in need. Another Nirbhaya would not have to lie helplessly on the roads of this country.

Many have opposed the death penalty awarded in this case, but as rightly said by Justice Banumati, it was a ‘barbaric crime’ that shook the conscience of the nation and ‘question of any other punishment is unquestionably foreclosed’.

For me, the day the sentence given marked a palpable, tangible difference in the way we view victims of sexual assault. For once, the outpouring of emotion had to do with anger and there was no victim shaming. The rage was felt not just by the kin of the victim, but by the whole society, especially women, who are at a higher risk of becoming victims. I saw society change and imbibe the values that we as women lawyers have fought for decades to bring to the fore. Sadly, the cost was very high, a young life cut short in its prime.

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