[This Blog has been authored by Suryansh Jaiswal & Kaustubh Chakrabart, 2nd year BA LLB students at Hidayatullah National Law University, Raipur]

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Introduction

The recent rape and murder at RG Kar Medical College (hereinafter, RG Kar case) has sparked widespread public outcry and highlighted the serious safety concerns for women in the workplace. As per NCRB Data Report 2022, about 31,000 women are victims of rape annually with a paltry conviction rate of 27-28%. Moreover, this number does not reflect the actual state of affairs as many cases go unreported due to a lack of confidence in legal enforcement mechanisms, unreasonable procedural delays and social stigma shrouding the victim and her family. This horrific incident has caused the society to finally sit up and take notice of a reality that it previously chose to ignore.

This article delves into the complexities of handling rape cases in India. Firstly, it looks into the background and judicial developments in the RG Kar case. Secondly, it makes comparisons with international rape laws and analyses the loopholes in the new Bhartiya Nyaya Sanhita, 2023 (‘BNS’). Lastly, it looks into the implications of public uproar and media trials in cases like these.

Judicial Vigilance: Background and Developments in RG Kar Case

The incident took place on the night of August 9, 2024 while the victim, a postgraduate doctor, was on a 36-hour duty shift. The investigation was transferred to the Central Bureau of Investigation (‘CBI’). On 15th August, an unruly mob vandalized the Emergency Ward and other departments of the hospital. There was immense public outrage at the lacklustre efforts of the state government to prevent such an act and the Indian Medical Association (‘IMA’) also called for a nationwide withdrawal of medical services, except emergency services.

Gauging the public sentiment, the Supreme Court (hereinafter, ‘SC’) assumed suo motu cognizance and a three-judge bench comprising of CJI Chandrachud, Justice JB Pardiwala and Justice Manoj Misra is presently adjudicating on the matter. A number of observations have already been made by the SC. Firstly, the SC noted that it was expected from the State Government to deploy state machinery to prevent a breach of law and order and criticized the act of vandalism. The SC created a ten-member National Task Force (‘NTF’), to be headed by Surgeon Vice Admiral Arti Sarin to give recommendations on the modalities to be followed all over the country to ensure safety at the workplace.

Secondly, the SC directed the Ministry of Health and Family Welfare to open a portal where stakeholders can submit their suggestions before the NTF. Lastly, the SC observed that the mass abstentions of doctors was causing severe implications such as denial of treatment to critical patients and urged them to resume their duties as the State government had been directed to provide adequate safety and security measures.

Consent Redefined: International Paradigm and the Blind Spot of BNS

In 2024, the Netherlands introduced a consent-based definition of rape by doing away with the previous mandate of physical force, threat or coercion. Thus, the new law recognizes any non-consensual sexual activity as rape. Similarly, in 2018, Sweden implemented a new rape law that lays down the test of non-voluntary participation and states that rape is a matter of choice and communication in sexual intercourse. The broad scope and applicability of this law has resulted in a 75% jump in rape convictions.

In 2022, after the heinous “wolf pack” gang rape, Spain implemented the “Only Yes means Yes” law that makes explicit consent compulsory for a sexual activity. This law opts for a milder punishment model and reduces the minimum prison sentences prescribe for rape. It was also given a retrospective application which led to the previously convicted sex offenders getting out of jail early. This blunder, coupled with an increase in the reporting of cases under the new law, undermines the efficacy of the statute and raises questions regarding the efficiency of milder punishments. Thus, this shows that providing milder punishments as a means of attaining reformative justice does not always succeed for crimes like rape. In India, stringent punishment has been the norm under S.376 of IPC  that has been retained, as it is, in S.64 of BNS. The delay in delivery of justice is not a result of the nature of the regime, i.e., retributive justice, but because of the lacklustre enforcement of the same.

In India, rape is both a cognizable and non-bailable offence. The definition of rape in S.63 is verbatim borrowed from S.375 of IPC. Unfortunately, many problematic provisions have been retained For instance, marital rape continues to remain unrecognized in India as per Explanation 2 of S.63. The SC’s decision of declaring sexual intercourse with minor wife as rape has been incorporated, and the age limit has accordingly been modified from 15 to 18 years. This move not only fails to adequately ameliorate the sufferings of aggrieved domestic partners, it generates more scepticism. While implementing the BNS, the Government missed out on a great opportunity of widening the ambit of ‘consent’. India should incorporate the principles of the Netherlands and Sweden and endorse Germany’s policy of “No means No” to criminalize any non-consensual sexual activity irrespective of gender, relationship between the parties, etc.

Despite one of the objectives that the Centre presented to repeal and replace the old law was to promote more gender equality, it is found wanting in its efforts. Firstly, the BNS has no provision addressing rape committed against males and also does not include a parallel provision of S.377 of IPC. While, the SC read down and partly decriminalised the section, it still criminalised sexual intercourse between non-consenting adults of any sex. This provision ensured that male victims of rape could also seek redressal. Secondly, the BNS does not talk about sexual crimes against transgenders. While the definition of “transgender” has been provided in S.2, the term does not find any other mention in the entire act.

Fourth Pillar’s Dilemma and Evolution of Protest Rights

Media, the watchdog of democracy, has a great role in shaping public sentiment on a national affair, especially, for sensitive matters such as rape cases. However, the Media may paint a guilty picture of the accused even prior to a fair hearing, thus, bypassing justice. Lawyers defending an accused are threatened and even judges are under immense pressure to pass judgement against the accused. Such incidents have also been observed in the RG Kar case. In Nilesh Navalakha v. Union of India, the Bombay High Court proactively laid down checks and balances as to how existing media publications and networks should report legal cases. As of now, there are no regulations imposed on the media by the Government as it is seen as stifling the right to free speech. However, when the media oversteps its boundaries, it is necessary to have mechanisms in place to ensure that the rights of the accused stay protected. While the media has a right to free speech and expression, it is also bound by the duty of observing objectivity so as to not erode the sanctity of the rule of law.

The SC’s prudent directions to take down the name of the victim in the RG Kar case from sites like Wikipedia demonstrates that privacy and dignity of the victim may take precedence over freedom of speech. Even S.72 of BNS supports this as it lays down punishment of fine and imprisonment up to two years for the unauthorized publishing of the victim’s identity.

The RG Kar case has also sparked one of the most heated public hue and cry in a long time. The SC has recognized the Right to Protest as a fundamental right enshrined in Article 19(1)(a) and (b). In Amit Sahni v. Commissioner of Police & Ors., the SC went a step further in imposing certain reasonable restrictions ruling that ‘public spaces’ cannot be occupied indefinitely. In the RG Kar case, the jurisprudence regarding this right has been evolved further as it creates a horizontal sub-class among citizens wherein professionals such as doctors have a restricted right to protest as they exercise a public duty.

Concluding Remarks and Way Forward

The Justice J.S. Verma Committee that was set up in the aftermath of the Nirbhaya Case, 2012 recommended Fast Track Special Court (FSTC) to be setup to expedite rape trials. This was implemented by the Union Cabinet in 2019 which has been recently extended up to 2026. Approximately 2 lakh cases have been resolved till 2023. However, it still falls short of expectations as many states have not yet operationalised the FSTCs. With the nod of extension up to 2026, this is a great opportunity for the states to establish FSTCs so as to handle and expedite the great volume of rape cases. As per a recent report, West Bengal, where the RG Kar incident took place, has a disposal rate of less than 2% for cases filed in FSTCs which is the lowest among all states.

A “One Stop Centre” scheme was instituted in 2015, and as the name suggests, services such as healthcare, police protection, etc. were integrated under a one stop shelter to provide relief to victims of sexual offences. The Ministry of Home Affairs had also proposed the setting up of Investigation Units for Crimes against Women in 2015. These are dispersed over selected districts all over India and aim to strengthen the processes of investigation, prosecution and trials. 

The recent atrocity at RG Kar suggests that the schemes and programmes rolled out in the aftermath of the Nirbhaya Rape case seem to have fallen short of the intended outcome. It is high time to enforce stringent administrative measures to deter perpetrators from violating the dignity and privacy of individuals. Urgent reforms are needed in the legal procedures like bona fide investigation procedures to ensure that justice is not delayed in such cases and is delivered as a matter of priority. Democracy will only find meaning when every individual will be empowered to live with his or her head held high.