“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”- Justice Arjit Pasayat
There are six legal rights for rape victims given below:-
– Right to Zero FIR
– Free Medical Treatment in any private hospital
– No two-finger test during the medical examination
– Harassment free and time-bound public investigation
– Trials with full dignity, speed and protection
– Right to compensation
Right to Zero FIR
It was introduced in the Criminal Law (Amendment) act 2013 on Justice Verma committee’s recommendation after the gruesome Nirbhaya rape case. This report states that if the police fail to lodge a zero Fir it will lead to rigorous imprisonment of 6 months and can extend to 2 years. Such an act can also lead to the departmental inquiry of this particular enquiry.
Filling of Zero FIR is just like filling a regular FIR, just that there is no jurisdictional touch to it. Like all regular FIRs, a Zero FIR can be filed in accordance with the below-mentioned checklist.
Recording of statements by the police officer in writing
– All details, without any speculation or assumption, should be provided to the police during the statement.
– Make the statement official by signing the
– Get a duplicate of your complaint and request for the identification number or Roll if not
In Lalita Kumari v. State of UP 2014(2) SCC 1, court observed that main issue that pops up is that people are not much aware and the police officials deny to register Zero FIR. They tell the victim and his/her family to approach the police station that has a jurisdictional aspect to take up the cognizance of that offence. Section 166A of the Indian Penal Code states that if a police officer refuses to register FIR (related to offences against women) can be punished with imprisonment up to 1 year or fine or both. Section 460 of the CrPC lays down a list of irregularities which do not vitiate legal proceedings. Clause (e) states that even though the Magistrate may not be empowered by the law to take cognizance of an offence but he still does so under Section 190 (a) or (b), it would not prove to be frivolous. These sections essentially constitute the legal basis of a Zero FIR as of today, since no explicit provisions have been added to the Code of Criminal Procedure.
Free Medical treatment in any Private Hospital
According to Sec 357C of Crpc, immediate medical treatment shall be given to the rape victims. Any Medical officials deny for medical treatment or demand money, that medical officials going to be liable according to sec 166 B of IPC, 1860 imprisonment up to 1 year, fine or both.
Right to No finger test
In 2005 new statue provision inserted in Crpc 164A SC gave guidelines in this particular section Lillu Aias Rajesh and another v. State of Haryana 2013(14) SCC 643 in para 13 two-finger test for rape survivor violates privacy, physical, mental, integrity and dignity. Two-finger test is illegal.
The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.”
Adding to the above, the Court also stated that the two-finger test is one of the most unscientific methods of examination that is used in the context of sexual assault and has no forensic value. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised.
Gujarat High Court: A Division Bench of J.B. Pardiwala and Bhargav D. Karia, JJ., while deciding the two clubbed appeals, held that,
“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.”
To add to the analysis, Court while placing their concern with regard to the “two-finger test” also stated that,
“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”
Referring to the Supreme Court case in, Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that,
“…A rapist not only causes physical injuries but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.”
“…two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity.”
Ministry of health gave guidelines and give Medico Forensic Taste, ladies doctor will examine the rape victims
Right to Harassment-Free investigation
According to section 157 of Crpc upon receipt of information relating to the commission of the offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under S. 164(5) of Code of Criminal Procedure 1973. The new Criminal Amendment Act makes a mandatory provision for recording the statement of the prosecutrix under Section 164(5A) (a) of CrPC by the Magistrate. As soon as the crime (as mentioned under the sub-section 5A (a) in Section 164) is brought to the knowledge of the police officer, he is now made duty-bound to take the victim to the nearest Judicial Magistrate for recording her statement. The victim is the informant approaches the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency. Thus a duty is cast over the Magistrate to record her statement.
53A. Evidence of character or previous sexual experience not relevant in certain cases. — In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, 2[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB] or section 376E of the Indian Penal Code (45 of 1860) or for an attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.] 1. Ins. by Act 13 of 2013, s. 25 (w.e.f. 3-2-2013) 2. Subs. by Act 22 of 2018, s. 8, for section 376A, section 376B, section 376C, section 376D (w.e.f 21-4-2018)
Kerala v. Rasheed AIR 2019 SC 721, court observed that according to sec 327(2)……the inquiry into and trial of rape……shall be conducted in cameras. Provided further that in-camera trial shall be conducted as far as practicable by women Judge or Magistrate and sec 327(3) for confidentiality and to the publication of proceedings subject to maintaining and confidentiality of name and address of the parties.
Further, Speedy trial sec 173 (1A) the investigation… shall be completed within
two months from the date on which information is recorded. Sec 309(1) Trial to be completed within two months from the date of filing charge-sheet. Sec 230 of Crpc trial program and procedure is given
Mahender Chawla v. Union of India date of order 5-12-2018 observed that protection of witness is mandatory.
Right to compensation
The criminal law of any country is the basis to punish the public wrongs done by an individual as well as to act as a deterrent for the society. The criminal law deals with various categories of crimes and their respective punishments/penalties. In India, one such category is the sexual offences against women, of which the offence of rape is a part. Section 375 of the Indian Penal Code, 1970 defines rape and Section 376 deals with the punishment of rape. Compensation to rape victims in an integral aspect of ‘right to life’ and in Shri Bodhisattwa Gautam v Miss Subhra Chakraborty AIR1996 SCC (1) 490, the Supreme Court made a remarkable observation that, “Rape is not only a crime against the person of a woman (victim),
It is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.”
Compensation to a victim of rape is undeniably important for her rehabilitation, especially in a society where the victim of rape is treated worse than the perpetrator. This not only helps the victim financially but also helps her in retaining a normal life in society.
Section 357 of the Criminal Procedure Code aims at providing compensation to the victims of crime, yet, despite this, most of the trial courts failed to utilize their power to award compensation to the victim. The same was highlighted in the 41st report of the Law Commission. Section 357 was incomplete in itself as it is incapable of taking regard of all the victims of the crime. Under this section, compensation is only granted when the trial is concluded. Hence, the legislature intervened and came up with a subsection i.e. Section 357A.
In 2008, an amendment was made to the Code of Criminal Procedure by which Section 357A was inserted in the code. This provision was inserted as a result of the recommendations of the 154th Report of Law Commission. Before this amendment, the main provision dealing with compensation to victims was Section 357, according to which the compensation was to be paid by the accused only on a successful conviction. Under Section 357 of the Code of Criminal Procedure, the State had no duty to compensate the victim which was a major flaw. However, Section 357A was a progressive step for improving the difficulties of the victims. This section imposed liability on the State to compensate the victim or his/her dependents who have suffered as a result of the crime. This Section addressed the lacuna in Section 357 with a focus on rehabilitating the victim even where the accused is not tried.
Section 357A requires every State Government in coordination with the Central Government to prepare a Victim Compensation Scheme. Through this scheme, the victim of a crime or his/her dependents will be able to claim compensation for their loss/injury. The State has to create and maintain a fund for providing the said compensation. A victim can get the benefit of the victim compensation through two ways. Firstly, the court which is hearing the victims’ case can recommend his/her case to the District Legal Service Authority or the State Legal Service Authority for compensation. The authorities will then award compensation to the victim according to the scheme prevailing in their State. Secondly, Section 357(4) allows the victim to directly approach the District Legal Service Authority or the State Legal Service Authority for compensation by making an application to them. This is a very useful provision for victims of a crime where the offender is not traced or identified as it enables the victims to get compensation in cases where a trial has not taken place.
This section also empowers the trial court to recommend for compensation under the scheme in cases where the compensation awarded to the victim under Section 357 is inadequate for rehabilitation or where the cases end in acquittal or discharge. Under this section, the District Legal Service Authority or the State Legal Service authority in addition to awarding compensation to the victim may also provide medical or first aid-benefits, or other interim relief, as may be required.
With the amendment of 2008, a modern approach towards victimology was taken, that a victim of crime has the right to be rehabilitated and compensated irrespective of the successful prosecution and identification of the offender.
sec 357A Victim compensation scheme, Nipun Saxsena v. Union Of India WP(C)NO 565/2012 After this guidelines NALSA created model rules for rape victims Minimum 4 lakh-7 lakh Rupees will get to the rape victims. The court found in conclusion that amount is inadequate then it can recommend more amount.
Factors need to be included to get compensation:-
The severity of mental and physical harm, incur the expenditure required for mental physical repair (Psychiatrist and counselling), the consequence of offence education loss, for working women loss of employment, the victim got pregnant or transmitted any STD diseases, financial condition, any disability, in case of death dependence will get the compensation
Further, Interim relief in the form of 25% of compensation of the whole amount.
According to recent government data India rank 3rd in the world (commission of rape), NCRB Reported every 15 minutes in India an act of rape and conviction of rape is 27% further 54% case is still unreported. UN survey on 57 countries only 11% case is reported. The courts and the legislature have to make any changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, were on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and society, these criminals should be sentenced to life imprisonment.
However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them. Studying the laws, the process, the application of those laws, one thing is certain- the entire structure of justice needs an overhaul, otherwise, the victim shall no longer the woman, but humanity.
by SAURAV KUMAR1
1 Central University of South Bihar, BA LLB (4th Year)