The debate around sexual violence has grown in India with rising cases of unprecedented forms of sexual assaults against minor girls. The horrifying accounts of gang rape in Kathua and Unnao in early 2018 and instances of sexual assaults from other parts of the country, like Banda, Surat and Nadia point to the weak laws and mechanisms to secure women’s dignity and rights. Alarmingly, these rapes are framed as isolated incidence of crime, rather than as outcomes of deep rooted misogyny and patriarchy, casteism and communalism that is widely pervasive. Perhaps, it is this skewed understanding that results in fundamental gaps being unaddressed while planning, formulating and implementing laws and policies crafted for women.

The year 2018 is of relative significance, as the Government of India (GOI) has to submit its sixth periodic report to the CEDAW Committee. The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in its pursuit to achieve ‘Substantive Equality’ and ‘Redistributive Justice’ for women provides universal minimum standards for women’s human rights. It is the first UN Treaty that is legally binding on State parties (signatory member-countries). India ratified the Convention in 1994. The Convention not only establishes norms which all countries must abide by, but also provides a mechanism to monitor the compliance by State parties. By ratifying the CEDAW, State parties are required to submit a periodic report on the progress made every four years to the CEDAW Committee. Under CEDAW, the State has responsibilities towards women, from which it cannot withdraw, and to which it will be held accountable.

During its 58th session in July 2014, the CEDAW Committee reviewed India’s compliance with CEDAW and issued ‘Concluding Observations’ urging stronger action to address the increasing incidence of violence against women in the country. The Committee called upon GOI to provide, within two years, (i.e. by 2016) written information on the steps undertaken to implement the Committee’s observations on Violence Against Women and Armed Forces Special Powers Act (AFSPA). Although the Committee highlighted various issues in the area of violence, only recommendations relating to sexual offenses are discussed here. They pertain to implementing the recommendations of the Justice Verma Committee regarding violence against women; amending the Criminal Law (Amendment) Act, 2013 – ensuring ‘Marital Rape’ is defined as criminal offence; establishing one stop crisis centres; and effective systems to monitor and evaluate the implementation to combat sexual violence. Even after four years GOI’s Interim Report is yet to be submitted. Moreover, there is no information available in public domain on GOI’s sixth Periodic Report to be submitted to the CEDAW Committee in July 2018.

Several concerns remain in the discourse on the rise in sexual offenses against women in the last few years. The Criminal Law (Amendment Act), 2013 broadened the definition of rape and made amendments to laws on sexual offenses, but, the recommendation pertaining to recognising marital rape as a criminal offense was ignored by the Government. According to the latest National Health and Family Survey (NFHS-4) for 2015-16, 5.4 percent women have experienced marital rape. However, the Parliamentary Standing Committee on Home Affairs in its report on the discussions of the Justice Verma Committee’s recommendations stated that criminalising marital rape had the potential to destroy the sanctity of the institution of marriage.

The ‘Nirbhaya’ case (2012), occasioned the Government to take several initiatives, however, India’s rape crisis shows very grim signs of abating. According to the latest National Crime Records Bureau (NCRB 2016), rape accounts for about 12 percent of all crimes against women while the average rate of reported rape cases is as low as 6.3 per 100,000 of the population. On 18 July 2018, the Union Minister of State for Home Affairs, stated that 1,10,333 rape cases were registered from 2014 to 2016, indicating a rise in such occurrences. When we analyse measures taken by the Government, there are serious gaps in the domain of implementation of such schemes and programmes. For instance, the scheme meant for survivors of violence, such as the One Stop Crisis Centres were originally designed to be in every district of every state, but only 170 OSCs are operational in the country since 2015.

India's crime records show that reported rapes of minor children had more than doubled between 2012 and 2016. More than 40 percent of the country's female victims are minors. Several cases have been reported where little girls get raped on their way to school. When schools themselves become sites of sexual violence against girls - how is the safety component going to be factored-in under schemes like ‘Beti Bachao, Beti Padhao’? States such as Rajasthan, Uttar Pradesh, Haryana and Arunachal Pradesh have recently awarded death penalty to those convicted of raping girls below 12 years of age. GOI followed suit when nation-wide backlash and scrutiny by the international community led them to hurriedly approve the Criminal Law (Amendment) Ordinance, 2018. The debate around increasing incidences of rape was almost entirely confined to death penalty – with no discussion on prevention, lack of sex education, misogyny or normalised forms of sexual harassment as part of the continuum leading to rape. The discourse on State accountability for prevention, protection, provision of safer public places across social groups, across regions - in rural as well as urban contexts needs to be brought to the forefront.

Another concern is the rising incidence of sexual offenses on women from marginalised communities, particularly Dalit women. Rape is used as a tool against the Dalit community to maintain hierarchy and caste-based power equations – Dalit women are ‘Untouchable’ but violable! The NCRB data shows recorded rape against Dalit women between 2007 to 2017 has doubled. It states that six Dalit women are raped every day in the country. This figure is likely to be a significant underestimation. The figures for total number of reported cases of sexual assaults is not disaggregated by caste or religion, so exact figures of women from marginalised communities reporting violence is not known.

The new Ordinance on Rape (2018) under criminal laws including the Indian Penal Code (IPC), Criminal Procedure Code (CrPc), Evidence Act and POCSO have now been made more stringent and a number of measures for investigation and fast-tracking of rape cases will be undertaken. The Government has stated that the NCRB will now start maintaining a national database and profile of sexual offenders. This data will be regularly shared with States/UTs for tracking, monitoring and investigation, including verification of antecedents by police. While stricter laws are a welcome step, they are certainly not enough. Gender-Just laws are undermined due to impunity and lack of comprehensive support provided to victims/survivors. As observed, stricter laws post the 2012 ‘Nirbhaya’ case may have led to higher levels of reporting but not necessarily to higher conviction rates - as the NCRB data shows that only 25.5 percent of rape cases end in conviction.

The way to a rights-based legal system for women lies in the respect for and codification of the principles of CEDAW in the country. What is required is a complete overhaul of the existing system, along with other measures of mass gender-sensitive awareness programmes, sex education in schools, among others, with an in-built narrative of zero tolerance against violence against women and girls. However, the challenge is how to decipher this commitment of CEDAW given on the international stage into real accomplishments at home. It is to be seen how the Government in its forthcoming Report to the CEDAW Committee due in July 2018, presents the current status of women and prioritises and integrates its commitment of ensuring protection of women’s human rights into its larger policy framework.

The views expressed in this piece are those of the author, and do not necessarily reflect the position of CBGA. You can reach Priyanka Samy at priyanka@cbgaindia.org.