Empowering Justice: Legal Rights and Protection for Rape Survivors

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28-Aug-2024 | Samiksha Kanaujia

Engaging in Legal Rights Discussion

The legal framework surrounding rape aims to address the crime comprehensively, ensuring justice for victims while providing mechanisms for support and protection. The recent rape and murder case of a doctor in Kolkata has once again highlighted the concern for women's safety in India. Increasing crime against women reflects deeper societal problems and systemic challenges. In these circumstances, it is important to revisit the existing legal rights and protections designed to address the severe physical and psychological trauma inflicted by such crimes and to provide a pathway for survivors to seek redress and healing.

Legal Rights Provided to Rape Survivors

The Indian legal system grants the following legal rights to the rape victims:

Right to Zero FIR: The 2012 Nirbhaya gang rape case in Delhi prompted the Justice Verma Committee to urge its implementation. Anyone with knowledge of a legal offence can file a First Information Report. Being a victim or eyewitness is not required. Zero FIRs are registered regardless of where the offence occurred. Police cannot claim jurisdiction shortage in this case.
- Under section 171(1) of BNSS, the provision of Zero FIR is provided. Section 173(2) grants the victim the entitlement to promptly receive a complimentary copy of FIR.
- The option to submit information for lodging complaints through electronic communication (e-FIR) has been implemented. The e-FIR must be taken within a period of 3 days prior to its inclusion in the official record.
- Section 193 (3) (ii), the police officer shall, within a period of ninety days, inform the progress of the investigation by any means, including through electronic communication to the informant or the victim.
Free Medical Treatment in Hospital: It alludes to free medical treatment at any public or private hospital, and medical practitioners must report rape victims to the investigating officer within 7 days, as specified by Section 184(6) of BNSS.
No Two-finger Test during the Medical Examination: This ruling was given under the case - Lillu V. State of Haryana (2013). The case held that the two-finger test lacks scientific validity and infringes upon women's rights to privacy, bodily and emotional well-being, and dignity.
Harassment-Free and Time-Bound Police Investigation: A woman police officer or other officers must record the statement under section 183(6)(a) of BNSS.
- The officer will come at a time decided or that is favourable to the victim. The primary rationale for this practice is to spare the victim from having to recount the occurrence during the trial. The statement provided by the victim to the magistrate will be considered definitive and will not infringe upon the victim's privacy.
- If the victim of rape is mentally impaired, an Analyzer Educator Social Interpretation will be present to comprehend the indicators and circumstances. The main reason is that the victim does not have to repeat the incident in the trial court, and the magistrate's statement is finalised, which does not breach the victim's privacy.
- To protect victims and ensure transparency in investigations, Section 176(1) mandates audio-video recording of victim statements for rape offenses.
Trial with Full Dignity, Speed, and Protection: Section 232 of BNSS alludes that procedures must be completed within 90 days of the Magistrate taking cognizance.
This period can be extended to 180 days with written justifications. Any application filed by the accused or victim before the Magistrate will also be sent to the Court of Session. Further, Section 250 allows the accused 60 days following committal to file a discharge application to expedite trials in session cases. Section 251 supports this effort by requiring a 60-day charge framing timeline from the initial hearing. Court rulings that enhanced fast-trial handling of cases.
- In the State of Kerala V. Rasheed (2019), the Supreme Court mandated that the court conclude the trial within a period of two months from the day on which the information was recorded.
- In the case of Mahendra Chawla V. Union of India (2018), the Supreme Court ruled to maintain the anonymity of the witness. If the witness wants to remain anonymous in court, they must submit an application to the court. The court will then provide an alternative name for the witness and ensure that their true identity remains confidential.
Right to Compensation: A new provision was under the Central Victim Compensation (CVCF) Fund scheme. Under this provision, every State Government, in coordination with the Central Government, shall establish a system to provide compensation to the victim or his dependents who received loss or injury from the crime and need rehabilitation. Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded to the victim.
- Factors that must be included to gain compensation include mental/physical harm, loss of education and opportunity, the financial condition of the victim, conditions of disability if the victim is pregnant and if the victim has contracted the HIV virus.
- The final scheme was introduced in May 2018 and was accepted by the Supreme Court. The court of all the state and union territories to implement the scheme. Under this arrangement, victims would receive a minimum of 4 lakh Rupees and a maximum of 7 lakh Rupees as compensation. If the court determines that the granted amount is insufficient, it has the authority to augment the amount based on the circumstances.
- In Manohar Singh V. State of Rajasthan and others (2015), the Supreme Court ruled that compensation can be given even if a crime remains unpunished due to insufficient proof.

Legal Framework: Expanding Legal Rights

The Criminal Law (Amendment) Act 2013 also known as the "Nirbhaya Act", was enacted in India following the 2012 Delhi gang rape case. It introduced stricter penalties for sexual offences, including the death penalty for repeat offenders and cases resulting in death or permanent injury. The Act expanded definitions of sexual crimes, criminalised acid attacks, and mandated faster trials and better victim protection. It also addressed sexual harassment at workplaces and emphasised clear procedures for handling sexual offenses.
- The Criminal Law (Amendment) Act of 2018 enhanced penalties for sexual offenses in India, the death penalty for the rape of minors under 12 years and for gang rapes, and increased the punishment for various sexual offenses. Reduced the time limit for filing rape complaints to 2 years for minor victims and six months for adult victims in specific cases. The Act also recommends the establishment of fast-track courts for swift trials.
The Protection of Children from Sexual Offences (POCSO) Act, 2012, is an Indian law designed to protect children from sexual abuse. It defines various sexual offences, mandates reporting by adults, and ensures child-friendly legal procedures. The Act prescribes strict penalties for offenders and emphasises victim protection and support.

Important Judicial Interventions

Tukaram and Ganpat vs. State of Maharashtra (1972): Also known as the Mathura rape case, the Supreme Court's controversial decision acquitted the accused based on the victim's alleged consent. The case, which involved the rape of a young tribal woman by police officers, faced severe criticism for its handling of consent and the victim's credibility. The case became a catalyst for public outrage and legal reforms regarding sexual violence and consent in India.
State of Punjab vs. Gurmit Singh (1984): The Supreme Court made a landmark decision on the handling of rape cases, emphasizing that rape is a severe crime that deeply affects the victim’s dignity and mental health. It ruled that the testimony of a rape victim should be treated with sensitivity and that the trauma suffered by the victim must be considered during the trial.
Vishakha and others vs. State of Rajasthan (1997): This landmark Supreme Court judgment established the "Vishakha Guidelines" to prevent sexual harassment of women at the workplace.
Chairman, Railway Board vs. Chandrima Das (2000): The Supreme Court ruled that rape victims are entitled to compensation. Based on constitutional and international human rights principles. The Court ruled that sexual violence victims can seek financial redress as part of their right to justice and dignity.
Independent Thought vs. Union of India (2017): In the ruling, the Supreme Court criminalized marital rape for girls under 18, addressing a significant loophole in child protection laws.

Moving Ahead as Civil Society

At the Judicial level: With the existing provisions, what we need is to ensure prompt and effective resolution of rape cases. Furthermore, it is imperative to routinely organise training programs for police and judicial staff to emphasise gender sensitivity and victim-centric/friendly approaches.
At the Societal Level: A comprehensive response is necessary, such as the provision of assistance to survivors of rape and the promotion of gender equality. A comprehensive sex education policy needs to be implemented in schools and workplaces to teach about consent, gender equality, and women's rights.
Furthermore, it is necessary to establish systems of legal assistance, counselling, and rehabilitation at both the governmental and non-governmental levels.
The media should use sensitive language when reporting on rape cases, as the terminology commonly employed by the media tends to stigmatize the victim.