With an increase in crime rate against women, one form of rape which is highly questionable and often ignored is Custodial Rape. When someone in power breach on their responsibility and misuse their postition and power, it becomes way too difficult for the survivor to find a way out to get justice. In the general sense, the term custody means the legal right to take care of something or somebody, especially children. It is the temporary possession or care of somebody else’s property. But in the legal sense it is the state of being imprisoned or detained, usually pending in trial.
When a person is under the supervision, care and control of another person or institution, he is said to be in custody and is known as custodian. Generally, the person or the individual has high degree of absolute control over the custodian . This Control and dependence relationship makes a strong duty of care and protection towards the custodian and under such circumstances, RAPE is a very serious violation that comes into light as the aggressor takes undue advantage of his position of control over the women in his custody and he violates not only her bodily integrity but also his primary duty to care and protect.
The most common example of custody is detention by the state through security army or other security forces which may be at police stations, lockups, prisons and interrogation centers. However, the concept of custody also applies to hospitals (government or private), mental health care, institutions, shelter homes and juvenile homes. In the late 1970s and 1980s, Women movement mobilized the issue of custodial rape after a series of incidents concerning safety of women in police custody came to light. They highlighted not only the power that a man acquires physically but also the power that uniformed officials wielding the state power and authority have over ordinary citizens, particularly women. The campaigns were rallied for law reform around the key incidents of custodial rape and demanded changes that would bring justice to the affected women.
ORIGIN OF CAMPAIGN FOR CUSTODIAL RAPE– During the national emergency in 1975-77, the state assumed arbitrary and unfettered powers dispensed with public accountability for its actions and clamp down heavily on civil liberties of citizens. The experience awakened an acute consciousness in the civil society and the judiciary of the dangers of state powers and how it could be used to violate and trample personal liberties. In a quick succession, three cases of custodial rape occurred in the climate:
1) Mathura in Maharashtra 1974.
2) Rameeza Bee in Andhra Pradesh 1978.
3) Maya Tyagi in Uttar Pradesh 1980.
These 3 incidents were a targeted form of violence against women which involved abuse of power by public servants who were duty bound to protect people of India and in all these three incidents the police acted with extreme brutality and without any fear of the law. These cases became symbol of blatant impunity, institutional bias and apathy by police forces. The Anti rape campaign gained momentum nationwide against the outrage of such cases, demanding the recognition of custodial rape as a distinct offence in law which was more serious than rape.
The movement of the law reforms focused on the part of criminal law remedies to create special mechanism and dedicated courts to create women friendly environment in the society with better potential. The campaign led to several changes in law and its enforcement nationwide in 1983.
CHALLENGES FOR MAKING THE PUBLIC SERVANT
ACCOUNTABLE-In the case of Custodial Rape, it was a very difficult and challenging task to prosecute and punish the rape accused as it was an offence committed by public servant. Under the criminal law the state is defined to be the protector of the people in the society which becomes a reason of why the state prosecutes rape cases and not the victim. But however, in the case of custodial rape this logic does not hold true.
It is very difficult to prosecute and even punish a rape accused of custodial rape as the challenge is very greater in task than it seems to be. The offence of custodial is generally committed in police station, jails and other government control institutions and because of this, the evidence is mishandled easily. It becomes very easy for them to destroy or tamper the evidence from the place of crime. For this, Women movement demanded a shift of onus of proof from prosecution to accused in such cases to counter the situation.
Also, it was a very difficult task to even register an FIR against the police or other custodian. The women face a lot of problems while registering: The complaint of the victim was refused to be accepted by the police and other forces. This may be under the authority of either police standing orders, or the impunity for offences granted under unjust laws such as the armed forces special powers for the police, central (armed) police forces or the army. The police record the informal complaints in form of community social register rather than lodging FIR and this act of police effects the removing the recording of offence outside purview of CRPC and the safeguards that it provides victims. The political influence in a state also compels the authorities to suppress the crime statics including the cases of custodial rape also.
REFORMS IN LAW – As discussed earlier that a lot of challenges were there in prosecuting the cases of custodial rape, women movement and outcry led to various law reforms and also demanded a paradigm shift in the criminal law related to rape and other forms of sexual violence that were committed in the custody. The various law reforms that took place were: –
1) Expansion of the term ‘Custody’ – A lot of cases took place of ‘rape in custody’ in context that means the rape of women was done by the police officials within the premise of police station, so the law was forced to give a broader meaning to the term custody. In 1983, the law changed and it expanded to understand the inclusion of rape by a public servant on women in the public servant custody or in the custody of public servant subordinate to him, rape by member of armed forces or by the management or inmate in a jail, remand home, or other place of custody. It also included the management staff of the hospital.
2) Shift in Onus of Proof-Under criminal law, it is the duty of the state(prosecution) to prove that the offence was committed by the accused. The state also has various powers and machinery to dispose to prove the guilt of the accused, the accused is presumed innocent until proven guilty under fundamental principle of human right and criminal law. There was a latest provision added to the cases relating to custodial rape in which to prove the act of sexual intercourse where women state that it was done without consent, the court will presume that consent was not there. The accused has to prove the onus i.e.; the women consented to sex.
3) Enhanced punishment – The sentence prescribes for a crime is often an indicator of the seriousness with which the law treats the crime. In 1983, there was an amendment made which prescribed the punishment for custodial rape to be increased as compared with committing of rape by an ordinary person. A minimum of 10 years rigorous punishment which may extend up to life imprisonment with fine has been prescribed under law.
4) Failure to perform duty- In 2013, an amendment in law was passed which stated for the first time in history that if the govt official fails to assist rape victim then they are said to commit a punishable offence and it is the duty of police to register FIR and if they do not fulfill their duty, a punishment of 6 months to 2 years is prescribed under Sec 166A IPC.