Abstract
This paper critically examines the rape case of Jyoti Singh unanimously known as the Nirbhaya rape case. It shows the effect this case had on the laws of the society. Justice Verma committee was instituted which led to the making of the Criminal Law Amendment Act, 2013. As a juvenile was involved in the rape, many changes were made which came to be known as the Juvenile Justice Act, 2015. There is a detailed analysis of the differences between the recommendations provided by the Justice Verma Committee and the actual changes brought about by the Criminal Law Amendment Act, 2013.
Keywords: Nirbhaya, Rape, Juvenile Justice Act, Justice Verma Committee.
Introduction
There is a clear description of the new sections and amendments that were made in the Indian Penal Code. The attributes of the judgement of the case have been well examined. We have a look at the defenses given to convicts to prove that they are not guilty. Many surveys were conducted after the rape which helps us in getting to know the thinking of college students at that time. The paper ends with the harsh reality that rapes do still happen and one way to curb it is to provide justice faster to terrorize people into not doing such diabolic crimes.
One of the most horrifying and terrible atrocities in Indian history occurred on December 16, 2012. After seeing a movie in South Delhi, Jyoti Singh, often known as “Nirbhaya,” and her friend Awindra Pratap Pandey were heading home. They chose to take a bus after numerous auto-rickshaws turned them down. At around 9:30 p.m., they boarded the bus at Munirka for Dwarka. Only six other people, including the driver, were riding the bus. One of the men, identified as a minor, called for the passengers and informed them that the bus was headed in the direction of their destination. When the bus veered off course and its doors were closed, her friend got concerned. When he objected, the other six men on board, including the driver, mocked the couple, asking what they were doing alone at such a late hour. When the friend attempted to protect Nirbhaya, he was beaten up by the perpetrators. A fight broke out between her friend and the group of men during the argument. With the help of an iron rod, he was beaten, gagged, and knocked unconscious.
The men then dragged Jyoti to the back of the bus, raping her and beating her with the rod while the bus driver continued to drive. In addition to being sexually assaulted, Nirbhaya’s body was horribly disfigured. According to a medical report, she suffered serious injuries to her abdomen, intestines, and genitals as a result of the assault, and the damage indicated that a blunt object the iron rod was used for penetration. Police later described the rod as a rusted, L-shaped implement similar to a wheel jack handle. On December 29th, she died of multiple organ failure, internal bleeding, and cardiac arrest.
Why is the judgement in Nirbhaya’s case a landmark judgement?
A case is said to have a landmark judgement when it has historical and legal significance. Nirbhaya was the first case where all the convicts were hanged together. Many such significant acts and amendments were made after Nirbhaya’s rape.
Research Methodology
This study adopts a qualitative research methodology, utilizing field research techniques to gather data on contemporary attitudes toward rape and sexual violence in India. The approach is designed to capture the nuanced perspectives of individuals, particularly within the youth demographic, who are critical in shaping future societal norms.
- Field Research: The primary data collection involved conducting surveys and interviews across ten universities and institutions in North India. This geographic focus allows for a diverse representation of student perspectives, encompassing urban and rural contexts.
- Surveys and Interviews: Approximately 575 surveys were distributed, targeting college-aged individuals to assess their attitudes towards rape, victim-blaming, and societal perceptions of gender-based violence. In-depth interviews with around seventy participants provided qualitative insights into personal beliefs and experiences related to the issue.
- Data Analysis: The collected data underwent qualitative analysis, focusing on identifying patterns and themes that emerged from the survey responses and interview narratives. This analysis aims to elucidate the underlying attitudes towards rape and the factors influencing these beliefs.
The combination of quantitative surveys and qualitative interviews offers a comprehensive understanding of the prevailing attitudes towards sexual violence in India, enabling a critical examination of the societal landscape post-Nirbhaya.
Methods
The research employed a mixed-methods approach, integrating both quantitative and qualitative techniques to enrich the findings and provide a robust analysis of the subject matter.
- Quantitative Surveys: The surveys included structured questions designed to quantify respondents’ attitudes towards various aspects of sexual violence, including victim-blaming, perceptions of safety, and awareness of legal reforms. The use of Likert scales allowed for nuanced responses, facilitating statistical analysis of the data.
- Qualitative Interviews: Semi-structured interviews were conducted to explore participants’ thoughts and feelings in greater depth. This method encouraged open dialogue, allowing respondents to express their views on societal attitudes towards rape, the effectiveness of legal reforms, and personal experiences related to gender-based violence.
- Thematic Analysis: The data from both surveys and interviews were subjected to thematic analysis, identifying key themes such as victim-blaming, societal perceptions of masculinity and femininity, and the impact of legal reforms on public attitudes. This analysis aimed to draw connections between individual beliefs and broader societal trends, contributing to a deeper understanding of the cultural context surrounding sexual violence in India.
This comprehensive methodology provides a solid foundation for exploring the complex interplay between societal attitudes, legal frameworks, and the ongoing challenges in addressing sexual violence in India.
Justice Verma Committee
Following this incident, the government established the Committee on Justice Verma to investigate necessary changes to the criminal code to strengthen laws protecting women and add other elements that were necessary in light of the increase in crimes against women. It was constituted on 23rd December 2012 and committed to submitting the committee report in 30 days, given the urgency and promptness that the Nirbhaya case demanded. The basic purpose of this Committee was to recommend amendments to the criminal law to provide speedy trials in cases, especially crimes against women.
The Justice Verma Committee made the following recommendations:
- It opined on life imprisonment for rape and rejected the death penalty as a punishment for rape because it lacks deterrence in society.
- It is proposed that in addition to homosexual, transgender, or transsexual rape, the criminal code be enlarged to include sexual assault on men.
- It also advocates for the repeal of the section of the law that makes “marital rape” legal.
- All forms of non-consensual or non-penetrative sexual activity should be included in the definition of “sexual assault.”
- The Committee also recommends the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, which was pending in Parliament at the time.
- It proposed separating the offence of “acid attack,” which was previously punishable under the offence of “grievous hurt.”
- It also recommends a few modifications to the rape victim’s medical examination, like doing away with the two-finger test.
- It also suggested creating a Rape Crisis Cell to offer victims of rape legal support.
- Anytime a rape case comes to their attention, the police are obligated to report it and file complaints about it. They must be disciplined in line with the Act’s provisions if they neglect to carry out their obligations.
- The Committee also suggests holding literacy programmes for children in order to teach them about sex.
- It also proposed electoral reforms under the Representation of the People Act of 1951, including the disqualification of those who face criminal charges for sexual offences.
Criminal Law Amendment Act, 2013 (Anti-Rape Act)
Under this amendment, new offences such as penetration, stalking, acid attacks, and voyeurism were added into the definition of rape. Even the threat of rape was now a crime and the person would be punished for the same. Due to the increased number of rape cases, the minimum sentence was increased from seven to ten years. In cases where the victim died or went into a vegetative state, the minimum sentence was increased to 20 years. The character of the victim was totally irrelevant to rape cases and it didn’t make any difference in granting punishment for the crime.
Differences between the recommendations of the Verma Committee and the changes made under the Criminal Law (Amendment) Act, 2013:-
- The Committee does not recommend the punishment of a “death sentence” for the culprits of sexual offenses like gang rape. Whereas the Act provided the punishment of a “death sentence” in serious forms of rape like causing the death of the victim or causing the victim to fall into a vegetative state and for repeat offenders.
- Although the Criminal Law Amendment Act of 2013 does not make “marital rape” a crime, the Committee recommended that it be.
- The Criminal Law (Amendment) Act, 2013 rejects the committee’s proposal which prescribes that candidates facing charges for sexual offenses should be barred from contesting elections.
- The Committee also recommended that the senior officials of the police and army should be held liable for the sexual offenses committed by their juniors, which was rejected by the Criminal Law (Amendment) Act, 2013.
- The Committee advised making provisions for sexual assaults committed against males, transgenders, and homosexuals, but it was not included in the Amendment Act.
Juvenile Justice Act, 2015
After this case, another weakness in the system was found because one of the accused in this case was a minor. It is said that he was the most gruesome of the six convicts who initiated the penetration of the rod and wanted to throw the victims on the road. Hence, the age for being tried as an adult for violent crimes like rape was changed from 18 years to 16 years, that led to the Juvenile Justice Act, 2015. The juvenile justice boards have been given the onerous task of determining age, determining whether the offence is heinous, conducting a preliminary assessment, and then deciding whether or not to transfer the child to the children’s court. The children’s court must then reconsider whether the child should be tried as a child or as an adult.
Professor Ved Kumari states that if a 16-year-old commits a serious crime for which he faces a seven-year prison sentence, he must appear before the Juvenile Justice Council, which determines the child’s physical and mental capacity and whether the minor is capable of comprehending the repercussions of the offence and the circumstances surrounding it.
- Changes in the Indian Penal Code, 1860 –: (The Criminal Law (Amendment) Act-2013 – Hyderabad City Police.)
- Insertion of Section 166 A – It covers the disobedience of law by a public servant. After the amendment act. It is now punishable by a fine and harsh imprisonment ranging from six months to two years.
- Insertion of Section 166 B – It covers the non-treatment of the victim by the hospital. It is made punishable with rigorous imprisonment for 1 year or liable to fine or both.
- Insertion of Section 326 A and 326 B – It covers the issue of Acid attack. It is made punishable for not less than ten years but may extend to imprisonment for life and a fine to be paid to the victim.
- Insertion of Section 354 A – It covers the issue of Sexual assault. It is made punishable with rigorous imprisonment which may extend to 3 years or with a fine or both.
- Insertion of Section 354 B – It covers the assault of criminal force on women to disrobe.
- Insertion of Section 354 C – It covers the offense of Voyeurism. It is the act of watching a woman when she is engaged in private acts including sexual acts or when her private parts are exposed.
- Insertion of Section 354 D – It covers the offense of stalking. Repetition of this offense is non-bailable.
- Section 370 of the IPC is substituted by 370 and 370A -:
- Section 370 – It deals with the offense of trafficking people including minors and the repetition of this offense.
- Section 370A – It deals with the offense of exploiting trafficked people including children.
- Insertion of Section 376 A – This section addresses the offences of rape and causing injury that results in death or renders the victim vegetative.
- Insertion of Section 376 B – It covers the offense of sexual intercourse by the husband upon his wife during separation.
- Insertion of Section 376 C – It covers the offense of sexual intercourse by a person in authority or a public servant.
- Insertion of Section 376 D – It covers the offense of gang rape with rigorous imprisonment of not less than 20 years extendable to life imprisonment.
Other Reforms post Nirbhaya’s case: –
- The government initiated One Stop Centres to provide immediate to long-term care for survivors of GBV.
- The Delhi police force now has more female officers, allowing women to share everything with them.
- The police were required to complete gender sensitization training, which aids in their comprehension of the issue of women’s rights and safety, and security was tightened and patrolling was increased.
- In order to give rape victims prompt assistance, six fast-track courts were established expressly to handle rape cases.
- A previously non-existent forum for public discourse on sexual assault against women was established.
- Failure to provide medico-legal care is now an offense under Section 166B of the IPC as per the Criminal Law Amendment Act, 2013.
Review of Literature
The literature surrounding the Nirbhaya rape case and its aftermath is extensive, reflecting a critical examination of societal attitudes towards sexual violence, legal reforms, and the implications of public discourse on gender-based crimes in India. This review synthesizes key themes from existing studies, focusing on the social, legal, and psychological dimensions of the issue.
- Social Attitudes Towards Rape: Research indicates a pervasive culture of victim-blaming in India, where societal norms often shift responsibility onto victims rather than perpetrators. Surveys conducted post-Nirbhaya reveal alarming statistics; a significant percentage of college students attributed blame to the victim based on her attire and behavior. For instance, studies show that 34% of college girls and 62% of boys either agree or are ambivalent about the notion that provocative dress leads to rape. This victim-blaming mentality underscores the need for comprehensive educational initiatives aimed at reshaping societal perceptions of sexual violence.
- Legal Reforms and Their Effectiveness: The Nirbhaya case catalyzed significant legal reforms, notably the Criminal Law Amendment Act of 2013 and the Juvenile Justice Act of 2015. The Justice Verma Committee’s recommendations aimed to enhance the legal framework governing sexual crimes, advocating for stricter penalties and the inclusion of various forms of sexual assault. However, critiques of these reforms highlight discrepancies between the recommendations and the actual legislative changes, particularly concerning the criminalization of marital rape and the treatment of juvenile offenders. The literature emphasizes the importance of ongoing advocacy for legal changes that align with societal needs and the protection of women’s rights.
- Psychological Impact and Public Sentiment: The psychological ramifications of the Nirbhaya case extended beyond the immediate victims to influence public sentiment regarding women’s safety and justice in India. The case galvanized mass protests and a national conversation about gender-based violence, highlighting the urgent need for systemic change. Studies have documented shifts in public awareness and attitudes towards sexual violence, reflecting a growing intolerance for such crimes and a demand for accountability from law enforcement and the judiciary.
Mukesh & Anr v. State for NCT Of Delhi & Ors.
A bench comprising the Chief Justice Dipak Misra, Justice R Banumathi, and Justice Ashok Bhushan delivered the judgment in the landmark case of Nirbhaya on 5th May 2017.
To impose a death sentence, the court must first consider the aggravating circumstances against mitigating circumstances. The Rarest of Rare test must then be used by the court to evaluate whether the case fits within that category in the absence of mitigating circumstances, as the death penalty is typically only given for the most extreme circumstances and not for all crimes.
In the present case, the aggravating circumstances were that the crime had been committed in an extremely barbaric, disgusting, diabolical, sickening manner and therefore merciless manner to stir up severe outrage from society. Exceptional depravity and extreme brutality were also seen in the acts of the accused. The mitigating circumstances were the young age of the convicts, dependants, and ailing parents, post-crime remorse, good behaviour in jail, and absence of criminal antecedents. Accordingly, the aggravating situations outweigh the mitigating factors.
The judges agreed that the act done by the convicts did not deserve any sympathy. The bench said it is humanly inconceivable how they treated her so casually and how they played with her identity, her body, and her dignity in such a devilish way. Despite the argument that the case is not among the rarest of rare cases, the court dismissed this argument. The Supreme Court said that the diabolic crime had shocked the collective conscience of the society and termed it as the rarest of rare cases. They awarded the death sentence to the remaining 4 convicts. The six accused involved in the brutal gang rape were bus driver Ram Singh, Mukesh, Vinay Sharma, Pawan Gupta, Akshay Thakur, and a juvenile. The bus driver, Ram Singh, committed suicide in Tihar Jail on 11th March 2013. The juvenile was convicted and sent to a reform facility for 3 years by the Juvenile Justice Board. The remaining 4 convicts, Mukesh, Vinay Sharma, Pawan Gupta, and Akshay Thakur were awarded the death sentence. The three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgement that had concurred with the trial court decision of the case. Mukesh, Pawan, Vinay Sharma, and Akshay Kumar Singh were hanged to death for the brutality they had shown against a woman in the country. Their crime satisfied the rarest-of-rare threshold, so the bench sentenced them to death. The 4 criminals were hanged at Tihar Jail on 20 March 2020 at 5:30 am which was welcomed by the citizens as finally justice was delivered.
Defense used by the convicts: –
The case was made very strong from the beginning of its trial. The appeal made by the defense against the judgement of the subordinate court at the High Court also gave the same judgement and assented to the order passed before. The counsel appearing on behalf of the defense applied for a Review Petition in the Supreme Court under Article 137. A review petition can be filed in a Supreme Court when either of the parties is aggrieved by an order passed by the court due to some error in the facts of the case. In the review petition, the defense counsel tried to raise a defense that the offenders were absent in the place and there lies no link between the crime and the offenders. The documents and proofs submitted by the State, DNA identification, fingerprints, witness testimonies, and odontology proved the presence of the accused convicts on the bus and their involvement in the crime which made the Supreme Court reject this petition. The defense counsel then moved for a Curative Petition. The idea behind filing a curative petition is to ask for the harmed party to receive relief even after the verdict has been rendered. However, the Supreme Court dismissed the plea, taking into account the welfare of the country, the need to prevent similar crimes in the future, and the need to stop the judiciary from continuing down an unjust path when handling cases of this nature in the future. Their final action was a Mercy Petition. The President of India may receive a petition for mercy. A punishment imposed by the Apex Court may be reprieved, respited, or remitted by the President; however, the Council of Ministers must be consulted before making such a decision. The President upheld the death penalty imposed by the Supreme Court, considering the welfare of the country. The accused with the help of their defense counsel tried every legal remedy possible to get some relief from the court. They were so shameless that even after doing such a heinous crime they did not have remorse or guilt. They went on appealing with excuses of juvenility and mental illness and challenged all the plea dismissals by the Supreme Court. In the end, after all, legal remedies were exhausted the President dismissed all the mercy petitions for administering justice to Nirbhaya’s family and for the welfare of the nation.
Surveys conducted after Nirbhaya’s rape -:
Mackenzie Brown was in India during the period of Nirbhaya’s rape. After going back to the US, the story of Nirbhaya kept haunting him and he decided to study the aspects of sexual assault in India. He recruited an undergraduate student, Nupur Agrawal, to conduct field research in North India regarding contemporary Indian attitudes toward rape and related issues. They designed a survey and set of interview questions that Agrawal took to India in the summer of 2013, where she visited ten universities and institutions. She conducted interviews with approximately seventy college-age men and women and obtained 575 surveys.
The surveys show us the reality of the mentality of Indians. Even though just 2-3 months before the survey was conducted, the whole of India was in shock due to Nirbhaya’s rape we see how people blame the victim in different ways.
We see how 34% and 62% of college girls and boys respectively either agree or cannot decide that dress codes and partying at night cause rapes to happen. The type of dresses that girls wear according to their own will does not give anyone the right to rape them.
We see how 29% and 43% of college girls and boys respectively either agree or cannot decide that Jyoti Singh was primarily responsible for her rape. If our youth has this kind of mindset about rape and mutilation that was so barbaric then a positive change can never happen in our society.
We see how 75% and 73% of college girls and boys respectively either agree or cannot decide that rape is more prevalent in urban India rather than in rural India. This survey is proof of how rural Indian cases like the Khairlanji rape case go unheard by the public which then assumes that rural Indian women do not succumb to rape.
Suggestions
The longer justice is delayed, the rapists think that they can get away with such crimes and don’t stop this inhumanity. The legal system should try to deliver judgements faster so as to maintain terror in every human’s soul so that they don’t even think of doing such brutality. When we look at the graphs given above, we see the conservative mentality of the Indian Society. We see how people are trying to put the blame on the victim and are oblivious to the idea of growth of the women. We are also shown how the society assumes most rapes occur in urban areas. Since they are unaware about the rural area crimes, they think it does not occur. Such mentality is what leads to discrimination and more coverage of the rural areas should take place.
Conclusion
The mother of convict Mukesh Singh begged Nirbhaya’s mother for their son’s life.
Nirbhaya’s mother responded in a strong tone, I also had a daughter, how do I forget what happened to her. It took 7 long years for Nirbhaya’s parents to get justice for their daughter. It is the words of the convicts and the defense lawyers that have garnered the most attention. Their words while shocking and disturbing do not come as a surprise or are unique to this case and point to the deep-rooted culture of hegemonic masculinity and of male privilege.
Written By : Avni Chandgothia, O.P Jindal Global University.