Ever since the victim of a beastly gangrape in Delhi aroused concerns of the middle class, almost every body is trying to get its slice of the news-cake. The latest is the J&K government that has indicated its will to modify the rape related laws in vogue and incorporate capital punishment. The other “inclusions” are expected to be denying sex offenders a bail, besides setting a two month period for police to complete investigation and four months for a trial court to decide the case.

At a place where anybody for anything can warrant detention under Public Safety Act, thinking of making sexual offence laws stringent is a welcome change. Newspapers have quoted advocate general M Ishaq Qadri suggesting capital punishment for rape of minor, gangrape and acid attacks on women. The government, if it opts for the “sweeping amendments,” will provide for a panel of lawyers who would plead the cases of victims.

The larger reality is that the laws pertaining to the women, especially for sexual offences, are not inadequate. No law pertaining to the sexual offence carries less than seven years imprisonment. And in case of harassment or verbal abuse, a man can go in to the jail for two years. The fact is that for rape, an accused can go to jail for not less than seven years which can be extended to life imprisonment which essentially means till death. The larger issue is how many individuals are in jail?

J&K is one of the states that have the lowest conviction rate. It obviously will have its own reasons. But the larger reality in Kashmir society is that most of the rapes are not reported and accounted for. A general impression is that a conservative society avoids stigmatization of its members and avoids landing into protracted processes in which victims are eventually made to relive the trauma in the courtroom and justice become a suspect. A recent instance of Shopian explains the crisis partly. A young school girl was raped and the family sat silent. But when it was pressurized further, as if to blackmail them, they finally found solace in involving police almost five months after the crime was committed.

The issue might require a larger study to understand the psyche that make reporting rape an abhorrent exercise in most of the cases. Those practicing law and investigating the cases involving sexual offences say that making laws stringent would not help. It is the fast investigations and smooth delivery of justice that will prove a deterrent. The immediate requirement is to have special courts that would fast-track trials and a very effective investigation system which is honest, capable and fast. Absolute protection to the victims and skipping the practice of reliving the experience in the court room needs to be done away with. At the same time, it needs to be ensured that rape slur does not become an axe to frame men, something that Pakistan’s Hadoud Law had done with women.

In Kashmir’s recent history, most of the worst and brutal reported rapes were committed by the forces funded, supported and deployed by the government. Instances of mother and daughter being raped under the safe roof at the same time or a daughter being raped with her father tied and forced to watch are some of the cases that might help ivory-tower policy makers to understand the grey areas.

All these rapes were committed as the members of the counter insurgency grid were deployed on active duty. All their actions in the pronounced disturbed areas are covered by the Armed Forces Special Powers Act that gives them impunity from the law. Generally, these allegations are denied. If pressure persists, the police lodge a case. If it spills over, then the armed forces announced and initiate court martial. For a crime that usually should fall under the cognizance of the routine civilian courts, “justice” is delivered through a press note after a process invisible from the larger society.

Is there no possibility of having a state law that will take care of sexual offences separately without invoking presumed national interests and issues of demoralization into it? Why can not a sex offence be treated at par between a soldier, a civilian, an officer, a politician, an insurgent or a commoner? How will law tackle a cop or a soldier who committed rape and ensured the victim does not come out of the besieged areas earlier than 24 hours so that circumstantial evidences is lost?

J&K, in the long run, may need to reassess its requirements for protecting the fair gender because it has a special status beyond Article 370. It is a place having highest tourist arrivals – 12 million in 2012. J&K gets more than half a million workers from neighboring states per year. And finally, one third of India’s Army might is permanently posted in J&K, even as one-third is in the process of coming or leaving!! For a small state, this much of social contact with such a huge floating population requires special considerations.

In the high-pitch debate of making rape laws stringent, the victim goes to dogs after the accused is hanged. If Omar government is so sure that it will fiddle with the rape laws – it barely touched with PSA after an international campaign because his law minister once said PSA was vital for ruling J&K, it must amend laws with victim at the centre. Why not create a corpus for funding the rehabilitation of the victims? Why not using the earnings and assets of the accused for victim’s rehabilitation? By the way, the State Human Rights Commission had issued a long order in a petition that women of Kunan Poshpora, Kupwara had filed – remember the village that was mass raped in 1992 winter – asking the state government to give some compensation to the victims. There has not been any follow-up.

If the government is thinking – usually it is the job of lawmakers, let them be slightly creative. Let them have exceptionally good response that essentially should take care of emerging situation in the state first. Becoming news is easier than creating one.


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