You may have heard, while the world was singing and dancing into the New Year last week, in India we witnessed a horrifying violation of basic human rights. The New Year’s eve celebrations in the city of Bangalore turned hostile when a number of men gathered on MG Road and Brigade Road at approximately 11pm. They went on to grope, molest and assault (henceforth referred to as “sexually harassed”) women who were on the streets for the celebrations. The area is known to be an area of high risk which is why it was supposed to be under tight protection, with around 1500 police officers present. Despite the precautions, the group of men were not stopped from passing lewd comments, groping, mocking women who dared to enjoy New Year’s Eve that night. Such mass harassment exposes not just individual criminality, but points towards a much larger problem regarding the safety and perception of women in India.
Whose duty was it to protect?
New reports state that precautionary measures proved insufficient and police were so outnumbered that they could only interfere in the ‘gravest’ of situations, something which is neither provided by law nor police guidelines. According to officials, 6000 individuals had gathered for celebrations with only 1500 police on duty at that location. The police also revealed that not a single case of sexual harassment was registered after the event. Later, they changed their stance, making assurances that those involved in the attacks would be identified and actions be taken against them. So far, no concrete information is available on what action has been taken.
One of the victims recounted the incident, and spoke of the apathy of the police officials that night, who did not come forward to help her. According to Indian law, the state police are empowered to register a First Information Report (FIR) and investigate in cases of non-cognizable offences (offences which do not require a warrant to make an arrest). Sexual harassment is a non-cognizable offence under several laws in India, including s. 354 (assault, criminal force with intent to outrage modesty of a woman), s. 294 (obscene acts and songs) and s. 509 (words, gesture or act with intent to outrage modesty) of Indian Penal Code. The police also carries certain duties under S. 30A (with regard to assemblies and processions) and S. 31 (to maintain order on public roads) of Indian Police Act, 1861. In any case, the Model Police Act 2006, also provides that it is the duty of the police:
to register and investigate all cognizable offences coming to their notice through such complaints or otherwise, create and maintain a feeling of security in the community
to provide, as first responders, all possible help to people in situations arising out of natural or man-made disasters, and
to provide active assistance to other agencies in relief and rehabilitation measures and to aid individual, who are in danger of physical harm to their person or property, and to provide necessary help and afford relief to people in distress.
Clearly, in this case, the police have failed to fulfill several of their duties to protect and, as we know, this is not the first time this failure has occurred. We ourselves are aware of situations where rape survivors have tried to file complaints at police stations with no avail or where the police have failed to protect women from their harassor following an incident.
Myths, stereotypes and victim blaming
Even more disappointing, though not entirely surprising given previous official comments following such violations, is the reaction of Karnataka’s Home Minister, G Parmeshwara, who told the news agency ANI,
“They tried to copy the westerners, not only in their mindset but even in their dressing,” he said. “So some disturbance, some girls are harassed, these kinds of things do happen.”
Samajwadi Party Leader Abu Azmi, went as far as to say that women themselves were to blame for this incident. Blaming victims in this way is frequently used by individuals in power in India to shrug off the gravity of the crime. Importantly, stereotypes, myths and stigmas characterizing women as “good” or “bad” (rather than facts of the case) influence how their cases are recorded, dealt with and even decided in court. Women are being penalized for not conforming to social and cultural expectations. In this way, women are often re-victimised when they approach the justice system rather than provided with the support they seek. Even in the famous Nirbhaya case, lawyers and politicians alike, among others, felt justified in asking why she was out so late, why she ventured out and why she was alone with a boy.
Unfortunately, these narratives of what a “good” woman looks like and who is “asking for it” are not confined to individuals but represent a systemic issue globally. Questions relating to what the woman was doing, wearing, whom she was with, at what time and in what state rarely fail to arise in cases of assault, rape and other forms of violence against women. In the US, the Brock Turner trial brought up some serious questions about the use of character assassination based on consumption of alcohol as a form of defence for raping an unconscious woman after a frat party. Similarly, in the UK, the Ched Evans case sparked a debate about whether past sexual history should be allowed in as evidence in a rape trial. In fact, we have seen courts refer to the victim’s behaviour over and over again to “excuse” the accused.
Changing laws, changing mindsets
Social movements have worked to minimize the impact of such myths on adjudication and sentencing in rape and harassment cases for some time now and while we have seen some success globally (see rape shield laws in the US and the prohibition questioning on sexual history of the victim in UK), there has been less success here in India. It is not wrong to claim that Indian legal system has made some progress towards protecting survivors of sexual violence. The amendments made in 1983 in the aftermath of Mathura gang rape case were significant in some ways: (1) the amendment to Indian Evidence Act in 2003 made provisions towards protection for rape victims and (2) s. 146 of the Evidence Act prohibited questioning of a rape victim about her previous sexual encounters. The amendment Act of 2013 is the most recent attempt made by the legislature towards this end, prompted by the Nirbhaya case.
Unfortunately, legal amendments have only been able go so far. They have not proved all that successful in changing mindsets, where women who do not act in line with the conventional notions of what a “good” woman looks like, lose their right to social and legal protection from sexual predators.
We, at SAHR, are looking at how we can challenge this thinking both within the courts and more broadly in our communities. In particular,
how do we, as lawyers, help judges see the actual experience of the survivor of rape as opposed to popular fiction on how rape usually occurs and who it happens to?
how do we ensure that irrelevant evidence, for example on a survivor’s clothing or past behavior, is excluded?
how do we move away from advising women about what they should or should not wear, who they should or should not meet and what time they should or should not be out to “keep safe”?
Victim blaming has perpetrated a culture where a woman bears the responsibility of not being raped or harassed, rather than a culture where perpetrators are held accountable. This incident, among the many others that occur daily, remind us of the work that lays ahead of us still to move towards radical change, not encouraging the use of pepper spray! Get in touch with us at email@example.com if you would like to contribute to this work.
If you need support
In case you were a victim of the harassment in Bangalore or are facing a similar situation, we include some brief information on your legal rights here. Please note this does not contain advice specific to your situation, so please do speak to a lawyer for further assistance.
You can lodge an FIR with the nearest police station.
The police cannot refuse to do so under any circumstance.
If the crime was committed outside the jurisdiction of a police station, the officers have to take the complaint and transfer it to the appropriate station.
Women can approach the ‘rapid response desk for women, children and senior citizens’, which is present in most stations, and in case that is not available, a female officer on duty can be approached. If female officer is not present, a female constable is called to take the statement; in case the latter in also unavailable a female representative from an NGO is called.
Additionally, the complainant need not be physically present to start the process of lodging an FIR- she can call or send an e-mail.If the woman is mentally or physically disabled, either temporarily or permanently, the police officer must go to her home
or a place convenient for her to register the complaint.
An investigation is initiated and varies from case to case depending on witnesses and the amount of information provided by the victim, after which an arrest is made.
Police stations cannot grant bail to such an offender. The courts, however, can grant a conditioned bail under which the accused is to keep away from the victim.
After an arrest, a charge sheet is made and sent to the court. The accused is to be produced before a court of law within a period of 24 hours.
This entire procedure takes up a maximum time period of up to 3 months. The Investigation Officer (IO) stays the same throughout the period of the case. Incase of transfer or retirement, a new IO is handed over the case. During court hearings, regardless of retirement or transfer: all the IO's dealing with the case must appear before the court to give their statement.
The case is fought by the lawyers towards a verdict.
Visit the following links for further information: