Sexual assault on women in India is a widespread problem. In 2009 alone, there were over 25,000 reported rapes in the country. Though there has been an increase in public attention regarding sexual assaults on women, people still believe that rape is not a big problem and do not think it needs to be addressed.
Until recently, we have shrouded sexual assault on women in India in an archaic culture of silence. Even now, the fast-changing landscape of India’s vibrant and diverse society has made it difficult for lawmakers to introduce comprehensive legislation that could give women greater protection from harassment and sexual violence.
The NFHS-5 Report On Sexual Violence
The NFHS-5 report released by Union Health Minister Dr Mansukh Mandaviya shows that the prevalence of domestic violence against women has declined over a decade, but has soared to 30% since the age of 15 years. The report reveals that 30% of women between the age of 18 and 49 have experienced physical violence since their 15th birthday and 6% are survivors of sexual violence in their lifetime. The NFHS-5 is based on a sample survey conducted between January 2015 and December 2016 covering 1 lakh households as part of a larger exercise by the ministry to assess indicators of health and nutrition in women, children, and adolescents. Two in five women have experienced physical or sexual violence by their husbands or partners, according to the survey. Only 14% of women who have experienced physical or sexual violence by anyone have brought the issue up.
Suggested Reading: Compromise in Rape Trials: The Ugly Realities of a Casteist System
Rape, the word itself, is taboo. What is even more shameful is that every six hours somewhere in India, a woman is raped and assaulted. A rape survivor herself said, ‘It’s like being raped again when you go to report it.’ Their suffering isn’t just physical, but psychological as well. Rape is listed as a crime in India’s penal code and an amended version was passed in 2013 after intense controversy over the previous law’s treatment of survivors and its imposition of lengthy prison sentences for perpetrators. But the story so far tells otherwise.
In a landmark judgment that could go a long way in addressing the imbalance in gender parity in India, the Delhi High Court has struck down Exception 2 of Section 375 that decriminalises marital rape in the country. The judgment was delivered on Wednesday by justices Rajiv Shakdher & C Hari Shankar. It took the court seven years to consider petitions seeking to criminalise marital rape.
Legal experts in India have long debated whether there should be a separate law that criminalises marital rape. In India, there are no legal provisions that define “marital rape” or recognise it as an offence. In the 1980s and 1990s, the Supreme Court of India had in several cases held that sexual intercourse with a minor wife below 15 years of age was not rape. The exception to Section 375 of the Indian Penal Code (IPC) was introduced in 1978 through the Criminal Law Amendment Act (CLA, following recommendations made by the Law Commission of India.
Why will it take a watershed incident of violence to cause amendment of rape laws?
The Supreme Court might have agreed to examine a clutch of petitions seeking to criminalise marital rape, a day after ruling that sexual intercourse with a wife below 18 years of age amounts to rape even if she is married. What we cannot see is that the criminal law on rape and sexual assault cases remained unchanged until the watershed incidents of the 1972 Mathura custodial rape case or the 2012 Delhi gang rape case. But what about offences against minors? Why will it take a watershed incident of violence to cause amendment of rape laws? By demanding the death penalty for perpetrators, rape cases can have the opposite impact: it could lead to perpetrators ensuring that the ones assaulted are dead or in no state to make a complaint or recognise them. There are problems with retributive justice. Tough criminal laws will weaken the marginalised groups. There is reduced reporting of sexual assault – 94.6% of cases in 2016, for instance, according to the National Crime Records Bureau, the accused is known to the survivor. The accused could be an uncle. The death penalty will silence the survivors. What does rape deserve then? And why are rape laws so half-hearted?
Views expressed are the author’s own.