If you cannot trust the very people entrusted to protect you, whom can you? This is the first question that comes to mind when the issue of custodial rape arises.
First of all, what is custodial rape and why do we need to know about it?
Custodial rape is rape perpetrated by a person employed by the state in a supervisory or custodial position, such as a police officer, public servant or jail or hospital employee. It also includes rape of children when in institutional care.
The onus to acknowledge custodial rape and spread awareness amongst people is important now, more than ever as we live in a world where people have a nag of misusing their power, authority and getting away with things to an extent way farther than what is acceptable. Tens of thousands of women are raped every year and not even 20% of them are reported, even if they are, either no proper action is taken or they are tortured in return and the only way to fight it is if people are educated about the acts and consequences for their actions.
It’s not an issue only faced in India but also in countries such as the US, Malaysia, Nigeria, Sri Lanka, Kenya, Cambodia, Pakistan and many more. It’s a global issue and has to be eradicated all the way from its root.
When did it all begin?
The concept of custodial rape didn’t exist before the year 1972, when an innocent girl named “Mathura” was raped by two policemen on the compound of Desaiganj Police Station in Gadchiroli district of Maharashtra. It was the first time in India when custodial rape was spoken about and for the first time Indians stood up against rape.
It all began on 27th march, 1972 when Mathura’s brother found out Mathura was having an affair with her friend Nushi’s relative Ashok and that they were intending to get married. He then filed a complaint in the above mentioned police station accusing Ashok and his family members of kidnapping Mathura. The very day police summoned Ashok and his family along with Mathura and Gama. Around 10:30pm, after their statements were recorded and general investigation was done, they were asked to disperse whereas Mathura was asked to stay back.
The first appellant then took her inside and raped her, the second appellant also tried to rape her but he was too drunk so he fondled with her private parts and they let her go. After coming out of the station, she told her family what they did to her and they filed a case against the police officers.
When the case went to the Supreme Court, it dismissed the case saying that since Mathura was already involved in a sexual relationship before the incident and that she was habitual to sex. Moreover, that there were no marks of agitation or protest on her body and also that she hadn’t screamed when they were assaulting her. The court was also of the opinion that she also might’ve made it up to have an upper hand over Ashok.
India’s reaction to the judgment:
People came together and protested this judgment after law professors Upendra Baxi, Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of Pune wrote an open letter to the Supreme Court, protesting the concept of consent in the judgment. “Consent involves submission, but the converse is not necessarily true. From the facts of case, all that is established is submission, and not consent…Is the taboo against pre-marital sex so strong as to provide a license to Indian police to rape young girls.” This is when the case gained momentum across the nation, people from far and wide challenged the verdict and stood up against custodial rape.
A number of women’s group were formed as a direct response to the judgment, including Saheli in Delhi, and prior to that in January 1980, Lotika Sarkar, was also involved in the formation of the first feminist group in India against rape, “Forum Against Rape”, later renamed “Forum Against Oppression of Women” (FAOW). A national conference was organised by FAOW which started the debate for legal reforms. Issues of violence against women and the difficulty of seeking judicial help in sexual crimes was highlighted by the women’s movement.
Government takes action:
The momentum raised by public resulted in the Criminal Law Amendment Act being passed in 1983, this act amended Section 114(A) of the Indian Evidence Act, which stated that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
Section 376 of the IPC was also amended; adding sections 376(A), 376(B), 376(C), 376(D) respectively making custodial rape a punishable offence and especially rape by persons with authority being a severe form of rape, declaring the punishment to be minimum 10 years of rigorous imprisonment.
In a Supreme Court judgment, it was stated that women cannot be arrested after sunrise and before sunset even if the constable is a woman and In case the woman has committed a serious crime, the police requires to get it in writing from the magistrate explaining why the arrest is necessary during the night.
Post the 1983 amendments, things have changed and people have become comparatively more aware of their rights and the consequences but there are many villages and towns in India where the situation still remains the same as ever, a few cases come into light whereas the others either are forgotten with time or the victims’ mouths are shut and many are too afraid to speak up or act against them.
In my opinion, the solution to this problem will only come when women are educated about their rights and regulations and it is made sure that they are heard. They are to be taught that talking about rape and reporting the wrongdoers will get them the justice they deserve and there won’t be more women suffering like them in the times to come.
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