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On December 16, 2012, a 23-year-old woman and her 28-year-old male friend were riding a bus in New Delhi when they were kidnapped and beaten by a group of young men. The woman was gang-raped. The two (who remain publicly unidentified for legal reasons) were left brutalized and naked on a street in one of the city’s wealthy neighborhoods. Two weeks after the attack, the woman died from severe internal injuries.
Indian police apprehended six suspects in the weeks following the crime. Three of the suspects claim to have been under 18 years old on the date of the attack.
The December 16 attack and subsequent public response have brought to the forefront a number of problems for India’s compliance with international human rights norms, especially with regard to women’s legal protections and the rights of minors. The crime and its fallout have implications for India’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the United Nations Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
Insufficient Legal Protections for Indian Women
Responses to the December 16 crimes came from a variety of sources inside and outside of India, including from the international human rights community. Anne F. Stenhammer, Regional Programme Director for the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) in South Asia, released a statement on December 20, framing the issue as one of human rights, demanding “concrete action and stronger implementation of already existing laws and regulations” against sexual harassment and violence, and calling for the Indian government to “take up radical reforms, ensure justice and reach out with robust public services to make women’s lives more safe and secure.”
The CEDAW, which India ratified in 1993, lays out a primary set of human rights obligations with regard to legal protections for women. Article 2 provides in part that parties to the Convention agree “[t]o establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the protection of women against any act of discrimination.” Furthermore, Article 15 states that “States Parties shall accord to women equality with men before the law.”
Legislative Response Falls Short
In the wake of the December 16 crimes, the Indian government established a three-person committee, chaired by former Supreme Court Chief Justice J.S. Verma, to collect ideas and suggestions from experts and the public, and to produce a set of recommendations for reforming sexual violence laws. The Verma Committee’s recommendations included setting maximum punishments for rape at life imprisonment and not the death penalty, not lowering the age of majority, and requiring more accountability of security officers in sexual violence cases. The Verma Committee placed blame for India’s sexual violence endemic on poor governance, i.e., poor enforcement of laws and not on the quality of legislation itself.
On February 3, 2013, President Pranab Mukherjee signed the Criminal Law (Amendment) Ordinance, 2013, a new law amending sexual violence laws. The law does not accord with many of the Verma Committee’s recommendations, as it sets the death penalty as the maximum punishment for rape, and maintains legal immunities for police and armed forces in sexual violence cases.
A number of human rights watchdog groups, including Amnesty International and Human Rights Watch, have called for the new law to be reformed in accordance with the Verma Committee’s recommendations and international human rights law. The new law defines crimes of sexual violence as “insults” or “outrages” to a woman’s “modesty” instead of crimes against her right to bodily integrity. Such a definition seems to treat a woman’s right to bodily inviolability as different from a man’s right solely on the basis of gender, and presents facial contravention of Articles 2 and 15 of the CEDAW.
Additionally, the new law does not recognize marital rape, making it so that women can bring sexual assault charges against her husband only in the narrow circumstance where she lives apart from him and is legally separated from him. This lack of acknowledgement challenges Article 1 of the CEDAW, which prohibits “any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women… of human rights and fundamental freedoms…”
The Indian Parliament passed another anti-rape law on March 21. The new legislation for the first time expressly outlaws stalking, voyeurism, acid attacks, and forcibly undressing a woman. It raises the minimum sentence for gang rape and rape by a police officer from 10 years to 20 years, and provides capital punishment for rapes that result in death. Reformers lament provisions in the new legislation increasing the age of consent from 16 years to 18 years, which they fear will lead to wrongful arrests. The new legislation also fails to address marital rape.
Problematic Age of Majority Reforms and Sentencing Guidelines
One of the suspects in the December 16 crimes claims to have been 17 years old on the date of the attack, and he has turned 18 since then. This situation posed a problem for the Indian courts: would he be tried as a minor or as an adult (i.e., as a man older than 18 years)? The question of whether to charge the suspect as a minor or as an adult significantly affects the length of his maximum sentence: as a minor, he would face at most three years in a juvenile reform facility; as an adult, he could face life in prison. The Indian courts decided that one of the alleged underage suspects would be tried as a minor. Because Indian law restricts the holding of adults in juvenile facilities, his three-year sentence can possibly be reduced to six months. Five other suspects are undergoing an expedited trial process and face life imprisonment or the death penalty if convicted, although two of the suspects, Vinay Sharma and Mukesh Singh, claim that they are minors. Sharma’s and Singh’s majority/minority status has yet to be determined, so the issue of sentencing guidelines is far from moot.
Indian Women and Child Minister Krishna Tirath has said that the government does not favor lowering the official age of majority, but the “rarest of rare” cases such as the New Delhi rape call for stricter punishment.
The possibility that someone would face life imprisonment for a crime committed as a minor stands in opposition to India’s international human rights obligations. Article 37 of the CRC, which India ratified in 1992, states that “Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.” India’s lowering the age of majority to allow prosecutors to seek life imprisonment and the death penalty for defendants under the age of 18 would similarly constitute an illegal circumvention of international human rights law.
Furthermore, Article 6 of the ICCPR, a document which India ratified in 1979, states that the death penalty “may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime...” Setting aside the question of whether the December 16 crimes would meet Article 6’s definition of a “most serious crime,” it would be contrary to Article 6 for the Indian government to consider making an exception to established legal procedures to extend death penalty eligibility to a minor.
Part of the problem in identifying the age of the suspects is India’s inaccurate recordkeeping, which makes determining the suspects’ exact birthdates difficult. Without an official birth certificate, the courts relied on the unnamed 18-year-old suspect’s school records—essentially what information his parents reported to the school—in declaring him a minor at the time of the attack. The continued development of India’s administrative infrastructure may help resolve these problems in the future, but India must also prosecute defendants within the bounds of international human rights law with respect to life imprisonment and death penalty sentences.
Treatment of Prisoners Triggers More Human Rights Concerns
Youth sentencing guidelines are not the only human rights problems that the December 16 incident has posed for the Indian criminal justice system. On March 11, Ram Singh, a 33-year-old suspect in the crimes, allegedly hanged himself in his jail cell at Tihar prison in Delhi. Singh’s family has raised questions as to whether he actually was murdered and claims that he was tortured in prison. Tihar has seen numerous suicides and murders among its prisoner population, and has previously been criticized for depriving prisoners of their rights (e.g., right against torture, right to wholesome food, and right to medical care) under Indian and international law. Article 10 of the ICCPR dictates that prisoners “shall be treated with humanity and with respect for the inherent dignity of the human person.” If the state was complicit in Singh’s death and torture as his family alleges, the Indian government should be made to answer for these violations of Article 10.
Absent Meaningful Reform, Progress Underway on Grassroots Level
It appears that grassroots responses to the December 16 attack may improve conditions for women in Indian society. Women in New Delhi have organized around the principle that the streets will be safer if there are more women on the road, leading to a substantial rise in the demand for female drivers in the city. The increased presence of women on the roads may indeed increase women’s safety. A November 2012 survey supported by UN Women showed that only 5 percent of women in New Delhi viewed public spaces as “safe” from sexual violence. The increased presence of women on the streets may have the secondary effect of achieving more fundamental steps towards women’s equality, as women increase their presence in a scene typically dominated by men and at least subtly assert their equal place in society.
These grassroots efforts toward equality are encouraging, insofar as they are not a transitory reaction to the outrageous crimes of December 16. The move toward reform for sexual violence laws and juvenile sentencing must not conclude with the December 16 criminal trial (which is ongoing as of the writing of this article). The inadequacy of India’s current sexual violence laws, as well as the incompatibility of India’s sentencing guidelines with respect to minors, warrant popular pressure on Indian officials for legal reform.