The brutal rape and murder of the veterinary doctor in Hyderabad, followed by the killing of four rapists in a police “encounter”, have seriously disturbed the public mind in the country. The crime has also reinforced the impression that India has become an unsafe country for women. There has been a predictable public outcry against this hideous crime, coupled with the demand for death penalty for the rapists. In Parliament, members, cutting across party lines, demanded stricter anti-rape laws, and stringent and expeditious punishment of the perpetrators. A woman Member of Parliament has advocated lynching of the rapists. Another member has demanded chemical castration of the offenders. Amidst the knee-jerk reactions, the hard fact was forgotten , i.e. it is not the severity but the certainty of punishment that is the real deterrent against the crime.

The idea that the death penalty will deter rapists is delusory and deserves to be jettisoned. After the 2012 horrific Nirbhaya case in Delhi, in an effort to assuage mounting public anger, the Criminal Law Amendment Act, 2013 was passed by Parliament. It contained stringent provisions of punishment for rape and other forms of crimes against women. The Act has draconian provisions of life imprisonment for gangrape. Further, the Criminal Law Amendment Act, 2018 provided death penalty for the rapists in cases of gangrape of children below the age of twelve.

Unfortunately, the stringent legal provisions did not reduce the incidence of rape in the country. According to the National Crimes Record Bureau (NCRB) data, 38,947 cases of rape were registered in 2016, 34,651 in 2015 and 36,745 in 2014, with a 32 per cent conviction rate in 2016. In India, a large number of rape cases are either unreported, or unregistered. Rape is one of the most unreported crime. Because of the stigma and shame, traumatized victims often do not come forward to report the crime to the police. The problem is not confined to India. The National Crime Victim Survey in Australia found that only about 32 per cent of the victims of rape reported their assault. According to statistics provided by Sexual Assault Services, George Mason University, Virginia, it is estimated that in the United States of America, for every sexual assault reported to the police, three to ten cases go unreported. The British Crime Survey, 2002, revealed that, according to their estimates, around 60,000 women were reported to have been raped during the year 2000. This is in sharp contrast to 7,000, the figure reported by the police in the same year.

But, despite non-reporting and non-registration, cases of rape in India are showing an upward trend because the civil society groups and the media have come forward in a big way to report cases of rape, thereby making it difficult for the police to evade such crime.

The provision of death penalty for the rapists may prove to be counter-productive. Because of enhanced punishment, the court will analyse the evidence more closely, and refrain from imposing the maximum penalty because of the fear of miscarriage of justice. There is also the danger of the criminals killing the victims of rape, in view of the maximum penalty awaiting them, if they are convicted. In the Hyderabad rape case, the woman was smothered to death by one of the assailants, and her body set on fire.

Prevention of rape is not an easy task because more than 80 per cent of the cases are carefully planned, and the perpetrators are known, or related to the victims. Rapes committed by strangers are not many, but invariably more violent and brutal. For preventing rape, different components of the criminal justice system must act in tandem. The police will have to investigate thoroughly and efficiently, and show greater sympathy and sensitivity towards the victims of crime. Poor investigation results in acquittal in most of the cases. Dearth of women police officers remains a major handicap in the investigation of rape cases. Representation of women in the police in different states of India is less than 4 per cent of the total strength.

In Delhi, it is 8 per cent. The women officers, in order to be effective, have to be trained in sympathetic and supportive interviewing techniques. I have seen untrained and insensitive women officers, behaving as unsympathetically and insensitively as their male counterparts. For devising correct strategies to combat the crime of rape, there is an urgent need for ascertaining the actual incidence of such crime through victimization surveys. This is now being done in many developed countries to correctly ascertain the incidence of crime and the victims’ perception of the police and the justice delivery system. Police statistics advanced by NCRB are notoriously unreliable and misleading.

Unfortunately, state police forces, as well as the Bureau of Police Research and Development, are rather unenthusiastic about organizing victimization surveys in a big way. There is need for the police to work, particularly in dealing with crimes against women, in close collaboration with the NGOs. A partnership between the police and the NGOs can unearth many concealed cases of crimes against women, and also provide proper relief to the victims. This kind of cooperation is conspicuously missing at present. But the most serious and baffling problem is the inordinate judicial delay in the disposal of cases of violence against women, particularly cases of rape. Even the Supreme Court has deplored the delay, as well as the poor rate of conviction in rape cases.

In many cases, maximum punishment is not imposed by the judge, after advancing certain extenuating circumspection. In a fairly well-known case, the court exonerated two young men of rigorous imprisonment because they had already suffered enough as undertrials. Disposal of the appeals in higher courts also takes an inordinately long time. There is now a growing demand for setting up of more special courts for trial of rape cases, and time-barred completion of trials. However, special courts will not serve the purpose of speedy trials unless judges are exclusively earmarked for them.

(The writer is Senior Fellow, Institute of Social Sciences; former Director-General , National Human Rights Commission; former Director, National Police Academy)