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Shagun Choudhary
Jamnalal Bajaj School Of Legal Studies Banasthali Vidyapith
ABSTRACT
The laws of India emphasizing the letter of the law – justice has been put to the test by the ongoing societal, institutional, and systemic problems regarding survivors of rape and child abuse. Although there are remarkable milestones in criminal law reform such as the Criminal Law (Amendment) Act, 2013, and the enactment of the Protection of Children from Sexual Offences (POCSO) Act, survivors face several challenges including; social isolation and stigma, lack of medical and legal assistance. A measure of overlap such as the one seen in the Hathras incident amplifies the oppression of the groups that are already vulnerable. Recent judgments – as the Delhi High Court one in SV vs. State (2024) show a duty of therapeutic jurisprudence, where a survivor has a right to access medical treatment and psychological help, according to Article 21 of The Indian Constitution. The judiciary has also embraced progressive change more and more and has left behind torturous methods like the two-finger test. Despite that, prospective programs face societal biases, appreciable noncompliance, and the absence of a comprehensive rehabilitation approach. In this article, the dynamics of the legal and judicial response to sexual violence are described meaning collaboration among the Judicial arm, the legislative arm, medical practitioners, and civil society in the fight against structural misogyny and the search for justice and decent treatment of survivors.
Keywords- rape, Child Abuse, Justice, India, Therapeutic Jurisprudence, POSCO Act, Article 21, Two-Finger test, Legal Forms, survivor-centric approach, rehabilitation, psychological support.
INTRODUCTION
India is a state where the law works as an instrument and justice must remain the goal. Justice is not a remote principle; it is the soul, the spirit, the life of law. The right to a fair trial in any civilized society forms the basis of the rule of law which among other things forms the gateway to justice, obligations and duties, the legal redress, and the forum for everyone to complain or file a complaint. A society without justice is a society that in effect hatches its citizens, withholds their rights, permits discrimination, and undermines the responsibility of the decision-makers. Understanding of access to justice and what it means may also differ across societies but its primary function is serving as a process related to dispute resolution because justice in its essence involves dealing with disputes fairly.
Sexual assault, especially rape, and child abuse, are rated as some of the worst violations of people’s rights where the victim suffers psychologically. Physiological and emotional impacts. These heinous acts not only disturb the lives of the victims but also pose a question mark to the justice delivery system as to how it can provide appropriate justice. Compassionate justice aims at preventing more than legal redress for victims yet they are offered support, dignity, and rehabilitation.
CHALLENGES FACED BY RAPE AND CHILD ABUSE SURVIVORS IN INDIA
Rape and sexual violence against women and girl children in India have received more attention since the widely reported Delhi gang rape in 2012 and the recent rape and murder of a young Kolkata doctor. Official records suggest over 31,000 reported rapes in 2022; over 90 rapes per day but the conviction rate varies between 27%-28% from 2018-2022, as per NCRB.
Even today there is a high rate of rapes and child abuse but there are still victims who encounter several challenges to get a chance at justice in India. According to the adage, Society, and families are why victims should keep quiet. This is extended by the medical practitioners denying the rape and child abuse victims timely medical examination, inadequate and improper medical kits for women and children in both the hospitals and police stations since their clothes, socks, undergarments, other wears like shoes or spectacles are taken by police officers for forensic evidence. However, these items are lacking and this does not mean that the state is replacing them. Very often, the survivors are forced to sit with blood-stained clothes on for hours before medico-legal activities begin. These procedures are very invasive and most of the time cause the victim to recall their ordeal. And then stripped of their clothes, the victims wear clothes from their relatives, policemen, or hospital gowns. In such trauma, they move around in public to return home which psychologically also harms them besides the earlier trauma.
Before the State of Jharkhand Vs. Shailendra Kumar Case, 2022 rape survivors are forced to undergo the ‘two-finger test’ by the doctors and medical practitioners creating further trauma to the women and girls where they are subject to invasive and degrading assault without any medical basis and psychologically harming them in addition to the trauma they already suffered. However, the court decision banned the two-finger test ending the patriarchal thinking suggesting that women cannot be believed when she states she was raped, merely for the reason that she is sexually active.
Additionally, these barriers are magnified for the survivors from small and minor communities who face caste and religious discrimination in addition to sex discrimination when accessing the legal system as in the case of Hathtras rape,2020. All these elements are part of a system where a survivor has to undergo numerous humiliations in their futile attempt to access justice.
CURRENT POSITION OF JUSTICE FOR RAPE AND CHILD ABUSE SURVIVORS IN INDIA
In recent times India has brought many changes in the laws for rape survivors addressing more space for rape and child abuse victims to live with dignity and their rehabilitation in society. The major 2012 amendments in the criminal laws expands the scope of rape definition and included the physical objects used for rape other than the penetration and the enforcement of the Protection of Children from Sexual Offences (POSCO) Act, creation of child-friendly courts and practices where a minor testifies before more than one court in the case rather than numerous courts.
In a recent judgment of Delhi High Court SV vs. State (2024), Justice Pratibha M Singh and Justice Amit Sharma also issued important guidelines to all the hospitals for effective co-governance that denying free medical treatment of rape and child abuse survivors is a criminal offense punishable with imprisonment for one year or with fine or both.
The judgment allowed for the ‘Therapeutic jurisprudence’ as it focuses on providing medical care and the statutory right to therapeutic access. The order of the High Court when read from the perspective of Article 21 of the Constitution of India allows us to think about the right to therapeutic access for all the survivors of sexual and gender-based violence.
Learning from the recent French judgment in the Gisele Pelicot case, the Indian legislation and judiciary will work to develop a system that allows therapeutic access, recognize the harm of sexual violence and enable medical care to women raped and beaten in marriage. The case is important for the medical profession to root out bias against women patients and end medical gaslighting.
In addition to these existing laws and recent judgments there are still some gaps within the civil society organizations where these victims seek justice from the judicial system or at times some of the victims feel ‘punished’ while dealing with the trauma. Most of those alive today walk around in tremendous distress: they use self-harm to regulate affect, cease or begin detachment from society, attempt suicide, self-punishment, etc.
CONCLUSION
To a certain extent, the fight for justice for the survivors of rape and child abuse in India has remarkably evolved in terms of the legal and judicial framework but the problems are not entirely solved. Despite the large manifestation of some landmark improvements including the 2012 reforms and the implementation of the POCSO Act, the structures of the society remain to impede the chances of survivors to get the rehabilitation, dignity, and decent treatment they deserve. As evident in recent decisions, the concept of therapeutic jurisprudence recognizes the fundamental rights of survivors of domestic violence to receive psychological and medical assistance, under Article 21 of the Constitution.
Still, societal prejudices, discrimination as well as weak compliance measures persist as some of the significant challenges. These cannot be achieved on their own, but the judiciary, the legislature, doctors, and civil society need to work together to build a coordinated system that will support the survivors in all these aspects. For India to truly mean justice as not only the soul and spirit of the law but also a life for its citizens, such structural misogyny has to be eliminated, as well as such disgusting prejudices against women silenced so that each victim receives comprehensive, dedicated care. The change that the silver lining community seeks to bring is the abolition of the cycle of silencing and punishing the victims after they have undergone traumatic life experiences.
REFERENCES
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