A Prosecutor's Disillusionment With India's Fight Against Rape

Co-authored with Raj Dobhal, a former public prosecutor.

Crimes against women have become a subject of fierce debate in recent years. The Delhi eve teasing case that made headlines recently is eerily reminiscent of the case of Rohtak sisters, who had alleged last November that they had been molested in a moving bus. Like in the Rohtak case, the accused, Sarabjit, has been vindicated by credible eyewitnesses, but only after being arrested, named and shamed on national media merely on the basis of an unverified allegation. Fighting crime against women is the right thing to do, but ignoring due process is not the right way to go about it.

The brutality of the Delhi Gang Rape had shocked the conscience of the country, resulting in nationwide protests demanding instant death penalty for alleged rapists and stronger laws to protect women from sexual violence. The occasional blips of dissent that called that expressed concern for due process were quickly silenced by the raucous calls for mob justice, and unprecedentedly strong laws that challenge the presumption of innocence came into force. The demand for strengthening the law has now become a recurring theme with every incident of sexual violence that makes national headlines. If strengthening the law is the solution to protect women from sexual violence, why has the incidence of rape and other sex crimes (according to the data from the National Crime Records Bureau) skyrocketed in recent years?

While the strengthened laws have done little to curb sexual violence, their unintended side effects are unmistakeable. A study by the Delhi commission for Women found that 53.2% of rape cases filed between April 2013 and July 2014 were proven false. Another study of rape cases in Delhi found that in over 20% of the cases, the alleged victim admitted to having filed a false complaint or turned hostile to the prosecution. A sessions judge in Delhi wondered whether those honorably acquitted of rape must also be considered rape survivors. Besides the obvious unfairness to innocent men, false accusations clog the overburdened judiciary and undermine the credence of genuine victims. The judiciary, being composed of humans is bound to err in separating wheat from chaff. The current scenario of an unrealistically low burden of proof (the law presumes a woman will not falsely claim to have been raped) coupled with an unacceptably high rate of false accusations is a perfect recipe for miscarriage of justice. Contrary to what we have been led to believe, India has one of the strongest anti-sex crime laws in the world. The presumption that a woman would never falsely claim to have been raped due to stigma attached to being a sex crime victim, and 'rape on breach of promise to marry' are exclusive to the Indian criminal justice system. In my experience as a public prosecutor, a rapist walking free due to legal technicalities is unheard of. Unfortunately rapists, wife beaters and eve teasers walking free because the crime was never reported, as is often the case involving victims from the poorer sections of the society who fear being exploited by the police or losing the sole breadwinner of the family, or the victim became frustrated by the slow turning wheels of justice and stopped showing up in court is a daily occurrence in our courts.

When we hear about crimes against women, we have in our minds the perfect paradigm case of a sympathetic victim -- a helpless and hapless woman, and an unsympathetic perpetrator -- a misogynistic privileged male. The mores are fast changing. Today the gender divide has become very blurred among India's bustling middle classes, but unfortunately millions of less fortunate Indians continue to live in a world that has less to do with the rising economic powerhouse that is the modern India, and more to do with the older India riven with illiteracy, poverty and patriarchy. Conflicts with the two disparate faces of India is inevitable. When things don't conform to the stereotypical views of the law and the society, as is often the case, the very notion of justice becomes hazy.

Viewing crimes against women merely as a law and order problem without addressing the underlying causes of the crime will not solve the problem of violence against women. The knee jerk approach of increasing criminal liability and enacting overly broad laws without understanding its unintended side effects has and will continue to only lead to questionable convictions and frittering away of resources from genuine victims. Instead we must focus on eradicating poverty, illiteracy and the stigma of divorce to economically and socially empower women to lead a violence free life. The most important change, however, is a change in society's perception of women, a change that involves viewing women as equals to men, not the weaker sex that needs to be protected by special laws.

I felt conflicted between my legal duties to convict and my conscientious objections to ignoring due process, but my conscience won the better of me. I now work for the falsely accused. I am still human, and will likely err, but I rather let 10 guilty people walk free than convict an innocent.