Legal System Is Still Failing Rape Survivors: Lawyer Vrinda Grover

The manner in which the Nirbhaya case was dealt with should be the norm, but is currently an exception.

(Photo: Altered by The Quint)

After the landmark judgement in the Nirbhaya gangrape and murder case upholding the death penalty for all four convicts, The Quint spoke to noted lawyer and human rights activist Vrinda Grover about the verdict. The brutal rape and murder saw 23-year-old medical student Jyoti Singh die of the injuries she sustained on board a moving bus in December 2012. On 5 May, the Supreme Court upheld the Delhi High Court’s pronouncement of the death penalty for the convicts. Hours later, Grover shed light on the issues of importance in the aftermath of the case.

Q: It’s been a case that has gone on for four and a half years, a case in which a lot of Indians feel personally invested, we’ve followed it in the media. If you could tell us what you think is the one positive takeaway, one thing that has changed for the better from this case, and one thing that hasn’t?

Well one thing that it’s shown us is that when the State wants, it has a system, it has a machinery that can work and we would want it to work for every woman’s case that comes, it doesn’t matter whether she’s an Adivasi or a homeless woman or a Dalit woman, it should be made to work. And there should be an investment of the State in that legal process.

(Graphic: The Quint)

The other good thing that has happened is that it generated a social conversation – we can no longer deny that there is such a high rate of sexual violence against women in our midst, we were living in denial. That silence has been broken. I think we are still not ready to point fingers at all places where sexual violence happens – sometimes they are too close for comfort, sometimes they are cloaked in State power or sometimes, like with Bilkis Bano, “those” women because they are “other” women, you are alright with that kind of violence being wreaked on them.

Q: This is a landmark case in many ways. It’s brought in changes in the IPC and the Juvenile Justice Act. Has there been a paradigm shift in the way the Indian judiciary and law enforcement treats rape cases?

It was important that there was a discussion and debate that emerged out of this case, including significant changes which were long overdue in the anti-rape law and other laws related to sexual violence.

The upholding of the verdict by the SC today is welcome because offences like this must be punished. However, I have a disagreement with the sentence – I do not think that the death sentence is in any way advancing safety, security or the cause of justice for which I would imagine all of us are engaged in this.

(Graphic: The Quint)

First of all, to equate justice with the death sentence is a very grave error to make and we should completely discard that equation – which is made very casually nowadays. Justice is about conviction and thereafter, for sentencing, courts have to take into account multiple factors, particularly for death sentences to be awarded.

We’ve had death sentence on our statute books for long, death penalty is awarded in terror cases, we have not seen any diminishing of murder, of terror or of any other form of violence. It has been established through extensive studies that death sentence is not a deterrent.

I do these trials and I can show you, through chargesheets, how the investigation remains very casual, important documents are not taken, nobody is paying attention, there is no proper supervision, the prosecution is indifferent, the trial process remains harsh, and there are inherent prejudices against women which continue to haunt our legal system.

Those are the areas where the spotlight should be. What is happening today is, everybody is behaving as though there was one and only one gangrape that took place in this country ever. I am glad that in the case of Nirbhaya, there is a conviction, there is a determination of guilt. But it’s not as though the lot of women in this country is going to change overnight.

By all accounts and studies, the largest number of instances of sexual violence and rape are by men known to the woman or to the girl child, so it’s happening in my neighbourhood, it’s happening in my home, it’s happening in my extended family, it’s happening routinely to Dalit women, their FIRs don’t get lodged, it’s happening to Adivasi women by security forces in Bastar, the NHRC tells us that.

Q: Ghulam Sarwar (question on Facebook live): Do you think justice for Bilkis Bano took too long?

So let’s look at Bilkis’ case. The judgement came yesterday, the society did not react, the media did not go into a complete flurry as we’ve seen the international and national media go today, why? Why is it that we are angry only on certain occasions and other cases do not draw our attention? Does that mean that actually it’s not about women at all?

Bilkis Bano’s case took 15 years. In Nirbhaya’s case, it has taken less than five.

Why is it that we are not asking for the manner in which the State and the legal system have dealt with the Nirbhaya case to become the benchmark and not the exception?

(Graphic: The Quint)

All women should have a right to speedy trial, all women should have a right to the best of special public prosecutors representing their case, all women should be given the most advanced medical care if they so require as a consequence of the rape. We don’t see those changes taking place at all.

Q: The Nirbhaya case is one that has got justice almost in record time. Do you think that this has paved the way for more fast-track courts for rape cases? Or did the media spotlight and the public pressure result in this case being heard by a fast-track court, unlike so many others?

Okay, so let me refer to another case that I have been working on. In September 2013, women were gangraped in the communal riots in Muzaffarnagar in western Uttar Pradesh. I was representing seven of these women in court. It was marked to a fast-track court in the Muzaffarnagar district. The trial was delayed over and over again. One of the women came to court, I was there with her. We requested the court to record her evidence. On flimsy grounds, repeatedly, adjournments were taken by the accused.

An affidavit was filed on behalf of the woman that she is under pressure, there are threats, she is being intimidated, she will not be able to withstand the pressure, her evidence must be recorded now. The court adjourned the matter repeatedly till that woman had no option but to say, “I was gangraped but I cannot identify the men.”

One of those women till today is determined to give evidence. We had to relocate her out of Uttar Pradesh. I filed a transfer petition before the Allahabad High Court in May 2016. After getting an order from the SC that the Allahabad HC must deal with that matter urgently, we are now in May 2017, my transfer petition, seeking transfer of the trial to another part of Uttar Pradesh is yet to be heard.

Where is that fast-track court? Why are we only making an exception in one case? Where is the commitment of the people of this country? Where is the commitment of the State to give justice to women? Where is the commitment of the legal system to give justice to women?

Q: Since the Nirbhaya case, the number of rape cases reported has gone up. But like you’ve been mentioning, the acquittal rates are also very high. It is of course extremely unfortunate that there are so many rape cases occurring in the country but somewhere can we say that the Nirbhaya case has made more women come out and report rape?

I wouldn’t say it’s the Nirbhaya case per se, it’s the protest, it’s the movement, it’s the debate that took place after this very unfortunate incident. Women came out in large numbers and the women’s movement was there and they all said that there is no stigma and shame attached to the rape victim. We will not keep silent. There was one slogan that reverberated through that protest which was “We want justice”. Those women are today saying “We are not going to be shamed. The shame is on the accused.” The women are stepping out today and demanding that justice but what is happening?

The legal system is failing them, the State is failing them. The acquittals are a sign that the legal system is yet not accessible, it’s a sign that the legal system is not sensitive, it’s a sign that the legal system will need to work much, much more to make it deliver justice and by justice we mean convictions.

Because we need to talk about where are the problems. This conversation on the death penalty has distracted all of us for far too long. It allows the State machinery to abdicate its role in providing justice to us.

Q: After the December 2012 incident, a lot of women came out and spoke about their harrowing experiences when they had gone to report either sexual assault or rape to police stations. Do you think that in the years that have followed, there is a greater amount of sensitisation that has come about in the police force or is it still as bad as it was?

I actually don’t think that the conversation should be about sensitising the police, it’s going to take a few generations, that’s not the purpose of this conversation. We need to talk about – how is the police functioning? You need a competent investigating officer who collects evidence promptly, who ensures that there are no loopholes, who makes sure that the entire circumstances are there, whether it’s electronic evidence, or statements that are recorded. The chargesheets that come, there are still so many gaps. There is no seriousness, there is no clear supervision.

That is bound to result in an acquittal. The acquittals are not happening because women are running away from the court. The acquittals are happening because the case doesn’t hold up.

Video Editor: Mohd Irshad Alam