The inhumanity and savagery by rape and sexual offences are on the peak now. Almost every day newspapers are pouring with the horrifying news of rape, gang rape of children and women. Recently, a disabled girl was gang-raped by six persons in Chandpur. Are we not shocked with the plight of the 6-year-old little girl who went to play with her playmates at the rooftop of a house in old Dhaka and was later raped and murdered by a man and her parents had to discover the dead body soaked with her own blood? Can we forget the ordeal of four women who were confined and gang-raped in Feni, over a long period of six months? Have we forgotten that 8-year-old was gang-raped and killed in Bagura on 26 December, 2020? Do our eyes turn blind when we hear that Puja a little girl from Parbotipur who was raped and brutally injured and she is still not out of danger and dragging on with her ordeal of rape trial with her parents for last 6 years? Do our hearts bleed with the news that the 13-year-old girl from Ullahpara, Sirajganj was gang-raped? Do we remember her portrait that was published in almost all newspapers, where she was hiding her face in her hands in 2001?
Tougher punishment has been enacted very recently for rape cases and cases are being recorded by police on a daily basis. But is there any sign of reduction of incidents of rape? Victims, particularly girl children are left behind to undergo an unending struggle to survive in the society with stigma and blame at very cost of their lives and dignity. When a girl is raped or seduced, there is no immediate civil remedy available to her. She faces complete holocaust and devastation. Many sensitive women or girl often commits suicide after rape.
The carriage of justice is often misconceived to the ambit of attainment of conviction of the accused only. A non-government report suggests that the existing system of rape trial results with a meager number of 3-4% of convictions leaving 97% in acquittal. How can the State and justice system be content with 3-4% convictions in cases of violence against women? Does it mean that 97% allegations were false and if that be so, what should be the reasons for giving charge sheets in such a staggering number of cases and burdening the justice system for no practical reason?
Here lies the importance of phasing out compensation as well other rehabilitative schemes so that victims of rape and sexual abuses do not feel that they are alienated and neglected by the state and justice system. Without their active participation in the process of justice, it is unlikely that the punishment of criminals can be ensured by the state. Their faith and reliance on justice system must be given the most priority. Further, ending the trial process with acquittal on technical grounds and victims carrying around the stigma, marks and medical proof of treatment and hospitalisation substantiate a huge vacuum or sheer negligence on the part of the prosecution to investigate and lead all evidences properly. Therefore, the state cannot shrug off its responsibility to pay interim compensation in cases where the condition of the victim is critical and/or where victims are dead as a result of brutal rape and torture.
At this point of horrific peak of inhumanity, what should victims of rape do deserve from the state and what role can our apex court, as third pillar of the Constitution, play? "Law should not sit limply, while those who defy it go free and those who seek its protection lose hope". This is what Frank Futer, J opined in Jennison v Baker back in 1972. The true destination lies at the lap of the victims. The jurisprudence of victimology has set its strong hold today that the responsibility of the State does not end merely by registering a case, conducting investigation, initiating prosecution and sentencing an accused. The turning point here was the case of Delhi Domestic Working Women's Forum in which the Indian Supreme Court relying on the Oxford Handbook of Criminology (1994 Edn.) opined that "….Should justice to the victims depend only on the punishment? Should the victims have to wait to get justice till such time that the handicaps in the system which result in large scale acquittals of guilty, are removed? ….How can the tears of the victim be wiped off when the system itself is helpless to punish the guilty for want of collection of evidence or for want of creating an environment in which witnesses can fearlessly present the truth before the Court? Justice to the victim has to be ensured irrespective of whether or not the criminal is punished."
The conventional theory of retribution has undergone a notable sea change, as societies have increasingly felt that victims were being neglected by legislatures and courts alike. Legislations have, therefore, been introduced in many countries providing for restitution/reparation. In the USA, a victim gets compensation from the Federal Crime Victims Fund. It covers lost wages, medical costs, and mental health counseling. In the UK, compensation is provided to victims by the Criminal Injuries Compensation Authority (CICA) where victims can apply for compensation ranging from £1,000 to £500,000.
The nest important case was Railway Board v. Chandrima Das, in which the Supreme Court of India held that rape is not a mere matter of violation of an ordinary right of a person but the violation of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21. In this case the Supreme Court, while the rape case was pending, directed Indian Railway Board to give compensation of Rs. 10 lacs to a Bangladeshi victim who was gang-raped by Indian Railway employees. The Supreme Court further held in Suresh that the responsibility of the State does not end merely by initiating prosecution and even after acquittal the responsibility of rehabilitation of the victim remains. The Indian Supreme Court has taken robust activism by phasing out interim compensation scheme in Nirbahya case and finally in Nipun Saxena (2018) case in which it held that the Gang Rape victims will be compensated from Rs.5 Lacs to Rs.10 Lacs, the rape victim's from Rs.4 Lacs to Rs.7 Lacs, unnatural sex assault victims from Rs.4 Lacs to Rs.7 Lacs depending upon cases and this amount of compensation is to be paid irrespective of conviction or acquittal.
In most developed and developing systems, the judiciary has come forward to fulfill the gap between fast changing society and rigid laws. This is because of the long and time consuming procedure of enactments of laws by legislature. The changes that we have seen in India, both legislative and judicial, are yet to be received and adopted by our judiciary and legislature not only for the best interest of the victims but also for the interest of the justice system and revenue expenditure.
The writer is an Advocate of the Supreme Court and Honorary Chairman, CCB Foundation.