Why even rapists deserve due process

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Voices of dissent The demand often is that the burden of proof in rape cases be shifted to the accused
Voices of dissent The demand often is that the burden of proof in rape cases be shifted to the accused Photo: AP

The countrywide anger and protest following the brutal gang rape of a 23 year old student has galvanized public opinion as never before. Even though the ostensible demand of protesters is to make the rape law more stringent, the real intent is to express “No Confidence” in the machinery of governance, especially the political class, police and law courts. That is why protests refuse to die down despite numerous pious announcements by the highest functionaries of the state- from the P.M to the Home Minister to the Chief Minister. True to character, the government has come up with a series of knee-jerk responses. These include appointing a Commission to suggest changes in rape laws in 30 days, a Special Task Force of all the big wigs in Delhi Government, proposal for chemical or physical castration of rapists, death penalty for all cases of aggravated sexual assault, mandatory registration of F.I.R.s in every complaint of sexual violence, special fast track courts, and gender sensitization programs for the police and so on.

Demand for stringent law: A common demand from both public and media is that the rape law should be made more “stringent”. This overlooks the fact that in India, the gap between what the law prescribes and what actually happens in practice needs to be addressed as the first priority. When a law fails to deliver what it promises, instead of undertaking a cool headed honest review of what is wrong with the law and its implementation, the tendency in India is to assume that the law is not stringent enough, that it has too many loopholes which enable the culprits to escape punishment.

Unfortunately, most of those demanding changes in law to make it more draconian, including most T.V. anchors at the forefront of this mass hysteria, have not read the existing law.The rape law was amended in 1983 due to pressure from women’s organizations following the rape of a young woman named Mathura in a police station of Hyderabad. It provides for a minimum 7 year punishment which may extend to life imprisonment. It also has special provisions for custodial rape including a minimum of 10 years in jail since Mathura was raped while in police custody. In case of brutal rape leading to murder, our law already provides for death sentence. Thus the existing law can hardly be called “lenient”.