The problem of sexual violence in the Indian state concerning women continues to challenge the Indian society where discussions and debates regarding women’s rights and protection, prevail at the present. Since the creation of the law dealing with rape victims there have been changes through pressure from the society situations, high profile cases and continuously encouragement from different stakeholders. It is important for law students and legal professionals to have these legal rights and protection understanding to shed light to the issues around and the struggles faced by most survivors in seeking justice.
The policy paper seeks to give detailed information on the current legal protection available to rape survivors in India in terms of prevalence data, legislative changes, significant case precedents and loopholes within the justice delivery system particularly in Judicial and Police Institutions
Even according to the latest statistical data output of National Crime Records Bureau (NCRB), India witnessed as many as 31,000 rape cases in the year 2022 which is a budding problem for a country that is working for women safety. They show that the rate of sexual violence has remained constant although there has been legal provisions and campaigns on the issue.
In addition, National Family Health Survey (NFHS-5) conducted in 2020-21 reveals that about 7% of the women had faced sexual violence ever in their lifetime which indicates that this has not confined to being a matter of buildings alone but is in fact rampant. Painfully, many rape cases which are said to be about 80% do not get to be reported because women are stigmatized, they fear to be blamed, they do not trust police and the justice system.
There are lots of barriers or obstacles that survivor of rape experience in seeking justice and have many challenges following the Rape. The societies consider sexual violence a taboo and this in turn makes many victims to be isolated, and so remain jobless. Institute of social sciences for women documented that approximately 69% of the survivors go through victim blaming and social stigma after they report their cases. Culturally, this form of silence and shame is now deeply entrenched, and ensures that survivors do not get the support they require.
Also, legal process could be very challenging sometimes; this means that one can easily get overwhelmed. Law enforcement may further traumatise survivors by denying them the required respect, or failing to carry out the standard procedures expected of them. However, the proportion of people convicted in rape cases in India still stays below 30%; it shows poor performance of the entire judicial system.
Laws protecting rape survivors may however vary and have been changing from time to time throughout the country due to certain special cases that have come to the lime light. The unprecedented atrocities done to Nirbhaya in 2012 brought massive protests and voices for change that are heard. In response, the Criminal Law (Amendment) Act, 2013 was passed thus bringing several dramatic changes into the criminal law of India.
They increased the severity, widened the category of rape, increased penalties and provided guidelines for the prosecution of raped cases. Time-barred trials was also provided under this Act which insisted for early trials to the survivors of the crime.
Rape under the BNS encompasses any non-consensual sexual act or coercive intercourse or attempts at intercourse with persons who cannot consent to it including minor. Most importantly, marital rape is still unrecognised despite demands for its criminalisation. The failure to criminalize marital rape also keeps married women vulnerable to receiving sexual violence without protection under the law.
1. Zero FIR: The survivors can file FIR at any police station irrespective of the place where the incident has taken place this makes the legal process to be faster.
2. Free Medical Treatment: Hospitals are required to offer free management of rape survivors to ensure that there is an access to emergency health care with no cost.
3. Ban on Two-Finger Test: The barbaric and degrading two finger test has been banned making a significant step in honouring the survivor’s dignity.
4. Compensation: The government pays out victim compensation for rape, but payments may differ from state to state.
Some of the most important judgements have over time had a profound impact on rape survivors in India. Such examples show changes in attitude and position of the judiciary and its desire to deal with injustice.
The Supreme court laid down guidelines for the prevention of Sexual Harassment at the Workplace recognising the need of safe environment for women going out for work. The guidelines included direction that the employer should act to ensure no harassment occurs and that they should provide means for complaining of harassment. These guidelines were later legally incorporated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
This case involved a woman who survived an acid attack and wants to be compensated for harm done to her. ‘The Supreme Court given Justice to Laxmi and ordered the government to Pay a Minimum of ₹3 lakh to Survivors of acid attack. Clear instructions and repercussions highlighted the need for economic assistance for the victims, gender-based violence and to establish the compensation to survivors of horrendous crimes as a ground-breaking precedent.
The Supreme court pointed out that cases of sexual assault have to be investigated as soon as possible and tried without undue delay. The court criticized at the long time a case takes in the judicial system, confirming the maxim that, justice delayed is justice denied. This ruling was a wakeup call from the president to judicial systems to reform so that the survivors can have quick justice.
This judgment reinforced the notion that lack of physical resistance does not imply consent. The court elaborated the meaning of consent as affirmative and voluntary and said no to the approach that means lack of refusal from the survivor. This is a landmark ruling, which helps in fight for survivors’ rights, and establish the right perception of what actually consent means.
While as far as the crime of rape it was not a part of it the case did prompt the need for egalitarian women’s rights hence the call for legislative changes to outlaw discrimination of women. The Supreme Court quashing the triple talaq instantly enunciates the principles of gender justice and paves the way for more changes in Indian legal system for justice for women.
Police embrace a critical place within the preliminary intervention of these cases of sexual assault. Following the 2013 amendments, police officers are required to adhere to specific protocols:
However, the task of survivors in addressing law enforcement is not a smooth process. According to the studies Survivors may be met with reluctance or even insensitivity from the police when seeking justice. Cases of victim blaming, where the survivor is put on the stand and discredited for one reason or the other has been reported. Such behaviour disempowers victims, and makes them believe they have to defend themselves against the offenders hence promoting vulnerability.
However, an aspect that continues to be wanting is that many police stations do not receive proper training when handling sexual assault cases sensitively, and the officers may not be properly informed of the legal measures which protect the survivors. From this knowledge gap, one may handle the cases inappropriately making it more challenging for a survivor seeking justice.
The judicial system is tasked with ensuring that survivors receive justice, but several systemic issues persist:
Delayed Trials: Litigation in Indian courts mean long trials in which a case may drag for years before there is a final ruling. Such a nature of delay can be traumatizing to survivors most of whom have to testify on incidents that happened during the lengthy court trial processes.
Victim-Blaming and Intimidation: Recourse is made to survivors’ character and behaviour in court; these survivors are cross-examined in ways that are traumatic. The currently dominant misogynistic attitude of our criminal justice system may in part be responsible for this victim-blaming trend, putting off many from reporting such cases.
Support for Survivors: Though there are legal provisions for the support of the victims, the provisions are not well implemented. Counselling, legal assistance, and financial assistance are the most of the important requirements of the survivors, but unfortunately, they don’t get the proper support they require to deal with such legal procedures and related legal formalities.
Realising the requirement of financial assistance to the victims, the state governments as well as central government facilitate compensation plans. The National Policy for Women state that independent financial support for the survivor should be provided immediately to meet medical costs, legal bills and other forms of rehabilitation.
Differently in each state, but usually mean such things as medical treatment, loss of earnings, and psychological treatment. These schemes are very essential to enable survivors recover and reintegrate in society.
Over the years, many campaigning that seek to educate the public on consent, sexual violence and the legal position of survivors have been conducted. In recent years social movements such as #MeToo and sexual violence campaigns conducted by NGOs have been in the forefront in putting pressure on the society and encouraging conversations regarding sexual violence.
These campaigns not only want survivors to be able to come forward and share their stories but want the general public to understand that survivors need support and that sexual violence should not continue to be white washed.
It is in the process to provide police and judicial personnel professional training for handling the cases of sexual violence. Specialized training programs focus on:
Gender Sensitization: Knowledge of the social relations of gender and how a survivor is likely to be affected by these norms. We were trained not to infringe on the survivor’s rights to dignity while at the same time highlighting that the survivor cantered approach must embrace the principles of trauma inclusiveness during investigation.
Legal Framework: Making enforcement agencies aware of the different legal frameworks that seek to protect survivors in order that they can enforce those laws in their practice.
There are legal aid services, and the survivors have been provided with competent counsel to enable them get justice. Women’s rights organisations and legal aid clinics help victims to find their way in the hierarchy of laws, help them register FIRs, and helps them in dealing with the courts.
In many regions, there have been established cells of legal aid that deal with sexual assault only to fulfil the requirement of the survivor by offering him/her specialized legal aid.
Despite the progress made, several challenges persist that require ongoing attention and reform:
Perceptions and practices as influenced by community cultural practices remain major challenges in addressing of sexual violence. Survivor’s status is alienating thus the potential victim avoids reporting the incident. It must be said that the change of these deeply rooted views in society is possible only through the use of extensive educational work and raising people’s awareness at all levels of society.
Although the laws have been passed allowing survivors to sue their offenders, there are still loopholes in their enforcement. That supervising of police, judicial officers and health care providers of the country is trained and have consistency in handling the sexual assault survivor’s case is crucial impact on the way of the survivor experiences in the legal system of the country.
Most of the survivors even now cannot receive legal, psychological, and financial assistance. This workshop is important in implementing strategies on nurturing the complexities of support networks for the survivors in order to ensure that the victims report the crimes and bring the perpetrators to book.
It then becomes crucial to advocate constantly for change given the fact that institutions have to be pressurized into making the change. Another challenge is that, for example, only 2% of survivors in Kenya report the crimes committed against them, legal aspects of addressing the issue may require cooperation with civil society organizations, lawyers, and other community activists.
Changes in the legal rights and protections of rape survivors of India have also marked progression indicating the India benchmarks about gender justice and women’s rights in the contemporary world. It has been evident that much has been achieved through the achievement of legislative measures, judicial activism, and increased awareness by society; however, the following obstacles can be identified.
Essentially for the law students and legal professionals, comprehending this is a vital legal fabric to pursue justice for survivors or to play a part for the continued struggle in a legal capacity. Thus, through engendering more understanding society, filled with people who knows more about these problems, we can develop conditions that are safe for every person and pressure of sexual violence will be excluded.
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