India: For Women – Open from 8 am to 8 pm Only

[A guest post by Jeet H. Shroff. Jeet is pursuing a Master’s Degree at Harvard Law School.]

The rape of a 23-year old physiotherapist, at 9:30 pm, in a Delhi public transport bus, on a busy route, on a busy day, in spite of the presence of an accompanying male friend, spotlights the shocking magnitude of the failure of India’s law and order situation. But even as we take to the streets with candles and placards, and even as the country’s most powerful figures angrily write letters and seek the imposition of fast-tracked capital punishment, the extent and frequency of the crime begs two very important questions: What took us so long to demand concerted action when such incidents have littered national headlines so many times over the past two decades? And by writing to authorities or demanding capital punishment, why are our elected representatives demanding action from others, instead of spearheading it themselves?

It takes a lot to stir our collective conscience. We are not easily moved – we are so busy living aspirational lives that we are too spent to worry about such mundane things as rapes, that occur according to one estimate, every 22 minutes in India. What’s more, this undying spirit, this unquenchable thirst and need to get on with our lives no matter the odds is a celebrated feature of the ‘New India’ we supposedly inhabit. We have all been representatives, at different times, of the spirit of Mumbai and of Delhi and Kolkata and Bangalore and Jaipur. So when we step out en masse to protest spontaneously, the brutal rape of a 23 year old, we must be really shocked. How else do we explain taking time out from our very busy schedules, to do something that is more than just an outraged Facebook post? Yet, we are all equally culpable in the crime we want punished.

As citizens, we failed our duty to demand change when a sixteen year old girl was raped in Haryana in September this year, allegedly by as many eleven men in unrelated incidents, three separate times, as she tried to escape one set of rapists after another; or when ASI Ravinder Pal Singh died protecting his daughter against an eve-teaser; or when in October alone, Haryana recorded 19 rapes, almost every other day between October 4 and October 30; or for each of the 909 cases of rape reported so far in Delhi and Haryana this year; or when a staggering 22,172 women were allegedly raped all over India in 2011; or when at least 2,13,585 women suffered gender-based crimes across the country in 2010; or when, in 2008, we recorded the third largest number of rape cases anywhere in the world. That these are reduced to mere statistics and that not one of these crimes stirred our conscience enough to demand action as we do now, contributed equally to the fate of the latest victim of our collective indolence.

In April this year, two undercover news reporters spoke to police officers in NCR – Delhi on the issue of the disconcertingly high number of rapes in the capital. In a shocking revelation, most officers revealed deep prejudices that calls into question their very continuance as law-enforcement officers. A majority of the officers suggested that family background, deals gone sour and provocative dressing, were the ‘real reasons’ for the rape. Some called into question whether such incidents were actually rapes – suggesting that in most instances, the victim desired some form of assault or at any rate, provoked it. One officer, mirroring comments made a few years ago by the Chief Minister, proposed a blanket curfew of 8 pm as an absolute time limit beyond which girls should not venture outdoors – so that women must remain indoors after hours, while potential rapists are free to roam the streets. As yet another report surfaced of the rape of a five-year old in Haryana, one must wonder which of these many reasons may have been responsible.

What these responses reveal however is an attitude that suggests that the offense of rape can be mitigated by proof of provocation. Worse, it places the subjective test of provocation on the whim of the accused, so that it becomes the prerogative of the victim to not provoke. Apart from highlighting its sheer inhumanity, these responses betray an attitude amongst the law-enforcement that its duty to protect is secondary to the victim’s duty “not to get raped” so that neither the rapist, nor the law-enforcement is to be blamed when a victim herself contributes to her rape by her choice of dress or her presence outdoors at particular times; an attitude which in other words seems to say, “this country is for rapists – save yourself if possible but don’t say we didn’t warn you.”

Equally guilty are our elected representatives. Their reactions following the incident does little to mask their collective failure. For years now, the people we elected have failed to rise above petty politics to enact tough new laws: on rape – despite a Supreme Court judgment suggesting changes in 1999 and a Law Commission Report setting out the nuts and bolts of how to achieve it, in 2000; on sexual harassment at the workplace – despite a Supreme Court directive following an equally shocking gang-rape of a social activist in Rajasthan in 1997; on stiffer penalties for assaults motivated by communal sentiments; and on the changes to the manner in which rape cases are investigated and the speed with which they are tried.

There is much that Parliament can do which goes beyond letter writing and capital punishment demands. (See this link for two informative posts on Law and Other Things by Mrinal Satish and Prateeksha Baxi) For instance, Bills to sharpen the anti-rape law and enact an anti sexual harassment law are still pending Parliamentary approval. A Human Rights Watch report in 2010 suggests that despite a Supreme Court finding of irrelevancy, the unscientific and degrading “two-finger test” to determine whether the victim was “habituated to sexual intercourse”, continues to remain standard forensic procedure across hospitals in India. And the findings of this test continue to aid defense lawyers in open court proceedings, adding to the humiliation of victims. Enacting laws to make this practice a punishable offense and providing for mandatory in camera proceedings for rape cases is another change Parliament can bring. Finally, there is an urgent need to usher police reforms to bring home that message that no matter the supposed instigation, howsoever provocative, there exists no right to rape and public spaces are not out of bounds for women, at any time of the day or night. As another victim of our collective failure succumbed, the responsibility to bring lasting change lies with us alone.

[The cover photograph is in the public domain and is sourced from the US National Archives and Records Administration]