[This is an AHRC Statement.
In a rule of law jurisdiction, the story of a victim of gang rape being raped by the same accused against whom court proceedings continue, might be outlandish. But, in India today, these are the common stories that confront anyone willing to see reality: A Dalit gang rape survivor has allegedly been gang raped again by the same five accused of raping her earlier.
The assault took place in Rohtak, Haryana, 66 kilometres from Delhi, the national capital. The young woman was reportedly waylaid by the accused when she stepped out of her college, raped, and left to die in the bushes. The survivor was rushed to the Post Graduate Institute of Medical Sciences in Rohtak where she is currently recuperating.
The mother of the gang rape survivor has claimed that the motive of the assault was to force the family into withdrawing the case they had filed after her daughter was first gang raped in October 2013. Two of the accused, arrested and jailed, were granted bail last month.
The incident, arriving not too long after the country outraged over the gang rape and murder of a young student in Delhi in December 2012, shows how hardly anything has changed on the ground, despite the lip services and cosmetic changes offered to assuage feelings.
The survivor had alleged that the first gang rape had happened in Bhiwani, where she originally lived in her own house with her parents. After making their complaint, the family had to flee the town and relocate to Rohtak, to live in rented accommodation, to escape the continuous harassment by the kith and kin of the accused.
The fact that they had to do this despite meagre means – the father of the survivor weaves coir mats for a living and the mother augments family income by working as a tailor – is a telling comment on the cost of seeking justice in India. The alleged repeat gang rape and murder attempt at the site where the family had relocated shows how seeking justice is a deadly affair in India. The accused will find you out and hunt you down so better suffer in silence rather than complain seems is what is being communicated.
One may wonder how the accused could even dare to think about doing this, when anti-rape laws had been made far more stringent, and when the death sentence has been added to the list of punishments to those convicted of the crime. It is simple. It is because the accused know that mere words on a statute like the Criminal Procedures Code or Indian Penal Code mean nothing if they are not implemented. They also know that law is enforced in India often as an exception, and even more so when the victims come from marginalised communities.
This is the state of affairs in the country that has no concrete victim and witness protection mechanism, despite repeated orders and directives of the Supreme Court and recommendations of Law Commissions. For example, the Supreme Court had lamented the absence of any law or even a scheme by the Union or even state governments to protect the witnesses in the National Human Rights Commission v. State of Gujarat case (Writ Petition (crl.) No. 109 of 2003).
The Law Commission had acknowledged the lack of a witness protection mechanism in its 198th Report in 2006 and recommended this mechanism be put in place. It had also recommended two amendments to the Code of Criminal Procedure, in sections 195A and 275, for heavily penalizing attempts to threaten witnesses and providing for evidence testimonial by video. More than a decade after the recommendation, nothing has changed, as the Union government did not take the legislative initiative in follow-up to change the laws.
Today, Delhi remains the only state to have started a witness protection scheme, and that too came into effect only in January of this year. The Union government, for its part, has sat idle, barring a guideline it was forced to issue under the directive of the Supreme Court, in the Savelife Foundation & Anr. v. Union of India & Anr. on 30 March 2016 (Writ Petition (C) No.235 of 2012). The guideline covers only those “Good Samaritans” who help the victims of road accidents.
This is what stops many victims of violent crimes from seeking justice. This is also what leads to far worse crimes committed against those who dare to defy the system and seek justice. This case of alleged repeat revenge gang rape is testimony to the joke that passes for justice institutions in India. It is just that it adds insult to the injury by exposing how futile an exercise it is to get more and more laws enacted.
This applies just as much to the Criminal Law (Amendment) Act, 2013, which arrived in the aftermath of the December 2012 gang rape in Delhi, and the outrage it caused. If only the citizens, the civil society, and the government get the point and push for structural changes in institutions to ensure the implementation of law. Without this understanding, all one will get will be new laws enacted to to temporarily quell the ‘outrages’.