Nirbhaya Gang Rape: A Case Study

In this blog post, Suprateek Neogi from Rajiv Gandhi National University of Law, Punjab discusses the Nirbhaya gang rape incident.

Facts of The Case

“Nirbhaya” is the pseudonym used for the rape victim of the infamous 16 December 2012 Delhi gang rape incident. On just another chilly December night in Delhi, Nirbhaya and her friend were returning from a movie theatre, they were waiting for a bus. One of the would-be culprits convinced them to get on an empty bus with tinted windows. They were assaulted by six males, one of whom was a minor, aged 17.

The friend, when he tried to protect Nirbhaya, was beaten up by the perpetrators. Nirbhaya was not just sexually violated, her body was mutilated beyond human imagination. Her intestines were pulled out, and private parts mutilated. She later died of multiple organ failure, internal bleeding and cardiac arrest on the 29th of December.

Social Reaction

There was a lot of social outrage due to the gruesome incident. There were a lot of candle light marches, solidarity movements and protests. India has always been notorious for being unsafe for women, and this was the spark which ignited the fire of public outrage. The outrage was not restricted to India, the whole world had formed an opinion about India. A British documentary called “India’s Daughter” was banned by the central government because it portrayed India in a very derogatory and poor light.

A majority of the outrage poured out on social media. In the contemporary times, with easy access to technology, the reactions on social media often reflect the mood and situation in the country. The hashtags #GangRape, #JyotiSingh #Nirbhaya and so on became “trending” on various websites. Organisations like All India Progressive Women’s Association (AIPWA) also made its mark. Its secretary became one of the lead voices for women’s rights on Twitter.

Feminist and women’s movements gained momentum and incentive. The culprits were made an example of and condemned. Not just social, there were legal repercussions of the incident too. The UPA government was being pressurised to make stricter laws regarding rape and dealing with juveniles committing heinous crimes.

Did the Nirbhaya Outrage Start a Long Term Evolution

The Nirbhaya gang rape was definitely the spark that ignited the fire for women’s rights and women’s safety. But sadly, the fire was short lived. The public outrage died in a few months, and with it, women’s issues took their usual place in the daily agenda.

In early 2016, a dalit girl was brutally gangraped in the Ernakulam district of Kerala. The rape was as brutal as the Nirbhaya gang rape case. But the social outrage about the incident was disproportionate to that of the Nirbhaya case, and as some argue, disproportionate to the crime.

This raises the question, whether the fact that Nirbhaya was a Delhi based upper caste girl as opposed to a poor law student from Ernakulam, Kerala, had some role to play in the difference in the social reaction. It could probably just be luck and insufficient media presence in that district, but the contrast is uncanny. The idea that a difference in location can make so much difference in media coverage for such issues is disturbing. This raises the question whether there are other unreported incidents.

The Legal Perspective

Law About Rape and Sexual Harassment in India

Rape

In the case of Parhlad and Ors v State of Haryana, the court called an offence of rape as basically an assault on the human rights of the victim. It was seen as an attack on the individuality and physical sovereignty of a woman. It is important to note that according to Section 375 of the Indian Penal Code, only a man can commit rape, and only on a woman.

Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal Law (Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the definition under Section 375 of the IPC. Section 375 of the IPC, after the amendment, defines rape as any involuntary and forceful penetration without the woman’s consent into the woman’s body parts like the vagina, urethra, mouth or anus.

Two developments had a major impact on the amendment. These were the Nirbhaya incident and the Justice Verma Committee report.

Suggested Reading: Human Castration as Rape Punishment in India

Justice Verma Committee Report

Just about a week after the Nirbhaya incident, Committee on Amendments to Criminal Law (Justice Verma Committee) was formed to suggest some long needed changes to criminal laws, especially with respect to women’s rights. The members of the committee were Justice J.S. Verma (Chairperson), former Chief Justice of India, Justice Leila Seth, a former High Court Judge, and Gopal Subramanium, former Solicitor General of India.

The recommendations of the committee were broadly relating to women’s issues, sexual offences, human trafficking, education and electoral reforms.

Highlights of the Report Relating to Sexual Assault and Rape Are as Follows:

• The committee backed the argument of various social scientists that rape is not simply a crime of passion. It is an expression of power. So, the Committee felt, the definition of rape does not cover the issue accurately.
  • The Nirbhaya case is a clear example of the insufficiency of the previous definition under Section 375 of the IPC.
• Any “non-consensual” penetration of sexual nature was included in its ambit.
• It recommended making marital rape an offence. Despite the recommendation, no action has been taken. It is still an exception under Section 375 of the IPC.
• Punishments –
  • The report also recommended the abolition of the “two-finger test”.
    • Two-finger test – The doctor inserts two fingers into the vagina of the victim to determine whether the woman was “habituated to sex”.
      • “Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent” – Supreme Court in Lillu v State of Haryana
    • The committee recommended that death penalty should be abolished, and maximum punishment should be life imprisonment. The recommendation has not been passed as a law.
  • Setting up of a Rape Crisis Cell for legal aid of the victims.

Nirbhaya Fund

As a reaction to the public outrage and reaction, the then Finance Minister, P. Chidambaram, allocated a lot of money for tackling women’s issues. He announced the “Nirbhaya Fund” in Parliament on his Budget Speech 2013-14. This showed an acceptance, either willing or forced, about the dire situation of women’s safety in India. The initial amount allocated for the same was a whooping INR 1000 Crore. Further, every year the same amount is reallocated in the budget.

Implementation of the Nirbhaya Fund

• In 2013, the government set aside about INR 321 crores for a project for sending distress calls through daily use gadgets like phones, which has not been implemented due to fund not being allotted for the project.

• Further, there had been proposals to put GPS trackers in trains, buses and such public transport, train stations etc. About Rs.1000 Crore was allotted to this, but even this has not been implemented on a large scale.

• A women’s helpline has been started, but it is not accessible to most rural areas.

• One Stop Centres for rape victims exist just one paper.

• Central Victim’s Compensation Fund has been set with a budget of Rs.200 Crores. Karnataka and Tamil Nadu have never withdrawn from the same.

The broad points about the implementation of the scheme again highlights how the Nirbhaya movement was a fad, and although the public and the government is still aware of the state of women in India, not much is being done for the same.

Name of a Rape Victim and Why Is It a Controversy

Section 228A of the Indian Penal Code prohibits anyone (especially the media) to “print or publish” the identity of the victim in cases of rape. The guilty may be imprisoned for two years, along with being liable for a fine.

Crimes of the nature of rape are usually associated with a lot of social stigma. The section aims at preventing the social victimization of the victim.

Nirbhaya’s Name

Section 228A(c) provides for an exception to the rule when the name can be made public when, in case of the death of the victim, the next of kin of the victim can permit the same. This happened in the case of Nirbhaya. The victim’s mother, Asha Devi, herself made Nirbhaya’s name known to the public saying the world should know what happened to her daughter. She felt that no rape victim should be ashamed of being raped, as it is the perpetrator of the crime who is at fault, not her.

But a contradiction arose when her father prohibited naming the victim in the documentary “India’s Daughter”, and even threatened of legal action. But they still have permitted the usage of their daughter’s name in media reports. Most media houses do not mention Nirbhaya’s name as a force of habit, and also as a way of respect.

Conclusion

India is known for a lot of things. The positive ones are its culture, diversity of religion, cricket prowess, beautiful scenic beauty. But often, a few incidents take place which make these positive factors take a backseat in foreign, and even domestic public opinion. The Nirbhaya incident was the spark which ignited the fire of negative public opinion about India.

It was recently printed in Sex Roles, a journal analysing women’s issues, gave academic backing to something we all Indians are aware of. It highlighted how “beliefs that blame women for their victimization, in turn, provide legitimacy to violence against women”.

Almost non-existent implementation of government schemes for betterment of women’s situation is one of the main reasons for the dire situation of women in India. Although the same callous attitude is visible in a lot of places, it affects the problem of women more. This is because the callous attitude is not just administrative or political, it is rooted in society and morality.

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