Custodial Rape in India

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Custodial Violence in India has been a major human rights issue for decades now. It is one of the root obstacles to democracy and the development of human wellbeing. According to National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India.

Between 2015-2019, 36% of deaths by suicide in police custody have been reported2014 onwards, physical assault by police has been recorded in only 6% of the cases

In the last 10 years, 403 of 1,004 deaths (40%) in police custody are listed as due to “Hospitalisation/ Illness/ Natural deaths” – a majority of such deaths

Rape is the most heinous crime inflicted upon the human race by themselves without any gender partiality. Generally a person who has another person in custody is in a very strong position and exploiting them sexually amounts to custodial rape. Custodial rape, which is as serious and cruel as custodial deaths went highly unreported for so many decades until a young tribal girl was raped by two policemen in the state of Maharashtra.

The issue of custodial rape came into light in the late 1970s and early 1980s when a continuous series of incidents of rape of women in police custody came to picture. This issue was mobilised by the women’s movement. 

Custodial rape generally takes place in the detention by the state via police or army or other security forces which are appointed to safeguard the lives of individuals but instead outrage the modesty of a woman. The concept of custodial rape not only includes security forces but also hospitals, mental institutions, shelter homes and juvenile homes where people are sent for rejuvenating their health but instead are brutally raped.

Section 376C of the Indian Penal Code, 1860 deals with the “Sexual intercourse by a person in authority" under a new category of sexual offences comprising of a group of sections known as custodial rape which does not amount to rape as, under such cases, the consent of the victim is obtained under some compelling conditions. These persons occupy supervisory positions and take undue advantage of their authority.

Officers of a jail, remand home, women’s hostel, children’s hostel, etc.:

Any person being on the management or on the staff of a jail, remand home or other place of custody or of a woman’s or children’s institution, taking advantage of his official position and committing rape on any inmate of the institution.

Section 197 of Criminal Procedure Code: 

1. When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

• in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
• in the case of a person who is employed or, as the case may be, was at the lime of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government

Section 197(1), CrPC was amended and explanation was added to the effect that it would not be necessary to seek prior sanction from the Appropriate Government for prosecution of a public servant for any of the offences of sexual abuse. This is for the obvious reason that the Section 197 is intended to protect public servants from malicious prosecution for acts done in the discharge of duties. It cannot be argued by any stretch of imagination that sexual abuse happened as a part of public duties, hence the said amendment was made to enable expeditious prosecution of public servants for rape and other forms of sexual abuse.

Present Scenario Of Custodial Rape In India:

Sexual harassment is nothing but a showcase of male dominance. Every hour, two women are raped in the country. A study in 2017 by the parliamentary panel showed that Uttar Pradesh is at the top for the highest custodial rapes in India. It was seen in the data of 2015 from Women in Detention and Access to Justice where a total of 95 cases were reported from Uttar Pradesh, following two cases from Uttaranchal and one each from West Bengal and Andhra Pradesh. In the year 2016, out of 26 custodial rape cases filed in India, a total number of 11 cases were from Uttar Pradesh which had said to decrease from the previous years. In 2014, the CBI had filed charges of custodial rape against seven Tamil Nadu cops who tortured and raped a 49- year old woman. The court held that an amount of Rs 2 lakh shall be paid to the victim as compensation and the suspension of the policemen. Another custodial rape case was reported in Rajasthan that after the custodial death of his brother-in-law, the Dalit woman was raped, tortured and detained by the police for several days. According to the report of 2018, Madhya Pradesh is a state with the highest number of rape cases in the country for three consecutive years where out of a total number of 5433 cases, 54 were cases which involved children below six years of age.

The case of Sheela Devi vs. State of Haryana and Anr, where the woman was raped and then murdered by a police constable in the police station. This case led to major protests. Finally, results were seen where the government introduced amendments in the law under rape and on the definition of rape. This amendment introduced the category of custodial rape.

The punishment for custodial rape was set to rigorous imprisonment of not less than ten years and may also extend to imprisonment for life and shall also be liable to fine.

In the late 1970s and 1980s, incidents of police torture in the form of custodial rape of women came to light. Rape has been used as an instrument of opression for centuries. Such incidents of rape in police custody also highlighted the persecution of women at the hands of uniformed officials. They would exercise their State powers and authority in a gruesome and inhumane manner. After the declaration of the National Emergency in 1975-77, the State would arbitrarily exercise their powers by doing away with public accountability for its actions and clamping down on the liberties of citizens. This period exemplified how the State power could be used to violate personal liberty and it awakened the conscience of society and the judiciary. In this environment of National Emergency, several cases of custodial rape emerged: 

Mathura Case (1972): Mathura (aged 14-16), an Adivasi girl, was called to the police station in Maharashtra for general investigation and asked to stay back while her family members left. She was then raped by two policemen.

Rameeza Bee Case (1978):Rameeza Bee (aged 26) along with her husband was arrested by police in Andhra Pradesh. She was raped by 3 police officers and her husband who tried to protest was mercilessly beaten up and murdered by the policemen. 

Maya Tyagi Case (1980): Maya, a six-month pregnant lady was beaten up, stripped naked by the policemen in Baghpat, and gang-raped in police custody. 

These incidents fueled the women’s movement. Anti-rape campaigns were launched by women associations. Law reforms around the issue of custodial rape were challenged and they demanded recognition of custodial rape as a separate offence and other changes in law that would serve justice to these affected women. These reformative movements had the prime focus of creating women-friendly institutions, dedicated courts, and safer spaces.

Reasons for rising Custodial Rapes in India

There are multiple reasons which have led to the increased cases of custodial and judicial violence in the country. Few are: 

• Absence of Strict Laws – It is important that strict and mandatory laws are passed in order to stop custodial violence. In India, custodial violence is yet to be criminalised and an unfair benefit of which has been taken by those in power over the past many decades
• No Solid Prison Reforms – The entire prison system is inherently opaque giving less room for transparency. Prisons in India continue to be affected by poor conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons
• Work Pressure – The police work under extreme pressure and in cases of a quick solution to complex cases, they choose violence to get evidence and confessions
• Social Factor – Considering the approach of “an eye for an eye”, the people in power choose to use violence to get out information from the ones accused of a crime
• Not following International Standards – India had signed the United Nations Convention against Torture in 1997 but its implications are yet to be mandatorily followed in the country

Challenges to Victims in Custodial Rape

Custodial rape typically takes place in police stations, jails and other places and the evidence is under the control of public servants. 

It is difficult to register FIR against police because:

• Police or other forces refuse to accept the complaint of the victim;
• There is political pressure to suppress crime statics, including statics about custodial rape.
• Police informal practices complaints are recorded in the form of Community Social Register (CSR) rather than FIR. So they can easily remove records of the offense.
• Section 197 CrPC prescribes that the public servant cannot be prosecuted for any act while discharging the official duty.

PTSD in Rape Victims 

Another extremely common phenomenon people go through after Custodial Rape is Post-Traumatic Stress Disorder (PTSD). It is a psychiatric disorder that can occur in people who have experienced or witnessed a traumatic event such as a natural disaster, a serious accident, a terrorist act, war/combat, rape, or other violent personal assault. People with PTSD have intense, disturbing thoughts and feelings related to their experiences that last long after the traumatic event has ended. They may relive the event through flashbacks or nightmares. They may feel sadness, fear, or anger and they may feel detached or estranged from other people. People with PTSD may avoid situations or people that remind them of the traumatic event, and they may have strong negative reactions to something as ordinary as a loud noise or an accidental touch. A study conducted on the psychological impacts of rape on victims by conducting a wekly check found out that after 1 week of the crime being committed, 94% of the victims showed signs of clinically diagnosed PTSD and Depression. Even after 3 months of the crime, 47% still met with the criteria for having PTSD.

Along with these, women also develop severe anxiety, obsessive thoughts, anger and in some extreme cases, it can lead to dissociation where the victim cannot accept or believe that something that traumatic has happened to them.

Punishment For Custodial Rape:

Through the Criminal Law Amendment Act, 1983, a new category called custodial rape was added to the Indian Penal Code, 1860 i.e., Sections  376 B to D .The punishment for custodial rape by a public servant is at least 7 years and may extend up to 10 years with fine.

Law Reform

Custodial rape was increasing and, the process of prosecution is challenging. The women’s movement demanded the law related to custodial rape. And this led to series of reforms:

• Expansion of the term ‘custody’

The law has given broader meaning to custodial rape since 1983. Before 1983, it was rape by police officials in the police station. Now it includes:

• Rape by police officers in the police station and the victim in his custody;
• Rape by a public servant on a woman in the public servant’s custody;
• Rape by Army man in an area where the forces are deployed;
• Rape by management/staff in a jail, remand home, women’s home and other places where women are in custody.
• Rape by hospital staff where a woman is in custody.

• Burden of proof

In Criminal Law, the burden of proof lies on the victim. They have to prove the guilt of the accused. The accused is innocent until he is not proven guilty. Cases of custodial rape were inspected under Section 114A of the Indian Evidence Act. As per the provision, if  prosecution manages to prove the act of sexual intercourse without her consent, then the court will presume the absence of the consent.

• Failure to perform the duty is a Punishable offence

After the 2013 amendment, if the government official has not registered a report of rape against the victim then it is recognized as he assisted the offender that is a punishable offence. If the police officer does not register the FIR then the person can file a case against him and he will be punished for the act with imprisonment for life and shall also be liable to fine.

Preventive Measures:

The recent amendments in the Code of Criminal Procedure, helps faster trials of cases relating to sexual offences may not have any impact due to a large number of pending cases in the courts. The union minister had suggested having separate courts for cases based on sexual harassment or sexual assault. It is high time for such courts to start functioning.

Usage of technologies like installing CCTV Cameras in all police stations to prevent custodial rapes

In a recent landmark case titled Paramvir Singh Saini vs Baljit Singh (2020), the Supreme Court of India ordered that CCTV cameras be installed in all police stations across the country, including interrogation rooms.

Installation of CCTV cameras in police stations and jails across the country, constitution of human rights commissions and surprise visits of jails and lock-ups by the non-official people would considerably reduce the cases of custodial rapes and torture.Cameras existed in prisons earlier too, but they were primarily installed in areas like a mess, exterior walls, towers (so that when the cells are open during the day time, prisoners do not escape), etc. Installation of CCTV cameras does not prevent custodial rapes and torture, but only makes conviction easier due to the availability of credible evidence. The court cannot through the installation of CCTV cameras on one hand protect the right to life and personal liberty of prisoners by preventing custodial torture and deaths, and on the other hand, violate the same rights by denuding them of their basic right to privacy and dignity. The recommendation for installation of CCTV cameras in all police stations is more effective than in prisons because police stations and lockups, therein, are a hotbed of custodial torture and deaths, as the interaction between the police and the prisoner is the highest there. This is not to say that cameras should not be installed in prisons at all. Cameras can be installed in common areas like corridors, but not in barracks and cells. Other creative options can also be considered to balance the safety of prisoners with privacy. The prison authorities should have a video and an audio recording of the planned or anticipated use of force, from the initiation of the action to the end, and should try to record other incidents of violence, which were not anticipatory, as soon as possible. CCTV cameras, if at all need to be installed inside barracks and cells, shall not be activated until an alarm button is pressed, either by the prisoner or someone from the prison authority, on happening of an event that warrants recording. Strict guidelines shall be laid for pressing an alarm button and recording by CCTV cameras. So that they are used only when it is absolutely necessary

False Accusations of Custodial Rapes

The serious aspects of false rape accusations venture far beyond any moral boundaries as a false accusation can tie up police resources and ruin the lives of the people around you. Although rape is an incredibly prevalent violent crime throughout the world, there are individuals who seek the attention associated with stating that they had been raped and have later been found to be lying. False rape accusations are significantly less common than actual rapes, but they can be far more damaging to a larger group of people. The most common reason as to why a person may claim that they have been raped when they haven’t is so that they can get revenge against someone in their life that they feel has betrayed them.

How entertainment culture and movies make this public to influence people minds

One such prominent source is Bollywood due to how easily accessible it is in terms of mass reach and the quantity of content produced. If one reviews 70s-90s or even early 2000s Bollywood, they will see how the representation of sex in those movies are far from accurate or realistic. In all Bollywood movies back then or now, there are three very easily identifiable niche elements; the bad guy, the hero, and the damsel in distress. The way this story plays out every time is that the bad guy finds the damsel alone and demands her “izzat” as if it’s a tangible thing she can hand over. Just when the bad guy is about to dominate her, in comes the hero with a massive savior complex.

After the hero saves the damsel, she is so eternally grateful to him that she can’t think of any other way to repay him but to pledge her undying love and loyalty to him. If we break this one scene down, it has more layers of objectionable content than an onion. But the main fact is Bollywood puts two narratives in women’s heads. One, you absolutely can’t fend for yourself unless a man decides to protect you and two, if a man does save you out of the goodness of his heart then you owe him something in return for a very basic act of kindness. This narrative is still very prevalent in movies like Housefull 4 where the leads save the girl from bad guys and the lyrics for the song right after goes something like “I have saved you from the goons, I think I deserve a kiss now” along with them persistently approaching the women.   

These actions may seem small but they end up defining how we view things like sex, consent and a woman’s agency to say no. If a hero is pursuing the lead even after she expresses her disinterest or in clear words shuts down his advances, what does it teach the young boys and girls watching these films about consent and how valued their no is? Especially when in the end, the script always takes a turn to the man’s benefit and the woman finally says yes. It sets a precedent that it does not matter if your advances are rejected, as long as you persistently keep on with them, the woman will finally give in. 

When we take all these factors and see how they practically pan out, it results in a woman not holding any agency when it comes to how society views her. A man thinks he can have whatever he wants as a result of society’s constant pedestalization of men and the narrative created by elements like Bollywood where the man gets what he wants. When these ideas are supplemented with people saying things like “men will be men”, it creates an environment where men are never held accountable for their actions. If anyone does what is portrayed in bollywood in reality, their actions are passed as “small mistakes” and people say things should not be blown out of proportion as it will ruin his life

Supreme Court's Important Case On The Custodial Rapes In Brief Judgements

Mathura Rape Case:

Facts of the Case:

A young tribal girl named Mathura lived with her brother Gama she worked as the labourer at the Nushi’s house for the employment. During the period of employment she developed the sexual relations with the son of Nushi’s sister, Ashok. They decided to get married, her brother filed a complaint to the police ensuring that Mathura had been kidnapped by Nushi, her husband laxman and Ashok. On 26th march, 1972 the statements of Ashok And Mathura were recorded at about 10:30 pm and the head constable Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. The appellant’s also asked Mathura to stay at the police station only. Thereafter closing the doors and turning off the lights inside, Ganpat, the appellant no. 1 took Mathura to the washroom and raped her. After the Ganpat was done, the appellant no. 2 Tukaram, tried to rape her but failed due to highly intoxication but touched her private parts.

After the incident Mathura was examined by the doctor and found no injury on her body. The examiner did not found the symptoms of semen even on the public hair. The semen however found on the girls clothes. After examining her doctors has also estimated the age of Mathura as between 14 to 16 years.

Judgement by the Supreme Court:

The appellant contented for the special leave and supreme court again converted the decision of the High Court and acquitted the accused. It was agreed with the decision of the session judge and held that this was a case of consensual sexual intercourse. On this spot the Supreme Court more added that as “no marks of injury” were found on Mathura’s body there was “no battle” on her part and since she did not “raise any alarm” for help she “consented to sex”.

Conclusion

Many changes have to be done to provide justice and to stop custodial rapes. Law should be improved so the woman can easily register complaints. The punishment of rape is not less than ten years but in reality, in many cases, it has been given three to four years.

Many custodial rapes have not been reported because rapists are in authority. The victim experiences fear of rapists and humiliation. It is hard to file a case against a public servant. If the case has been filed then the evidence would remain within the public servants, so the evidence can be easily destroyed or either changed. The number of cases reported is less because there is government pressure to show fewer crime rate statistics. Government should also provide facilities for counselling for victims because they are suffering from traumatic situations.