Introduction
So many years past being raped, I tell myself what happened is “in the past.” This is only partly true. In too many ways, the past is still with me. The past is written on my body. I carry it every single day. The past sometimes feels like it might kill me. It is a very heavy burden.
Roxane Gay, Hunger: A Memoir of (My) Body
The lines above, penned by the famous American author Roxane Gay, provide an apt and painful depiction of sexual violence in a civilized society, which tarnishes the victim's body and soul for the rest of her life, and which manifests itself as psychological trauma for years to come. As a society that should hang its head in shame for the enormous pain inflicted upon its females, it should choose to find ways to avoid this embarrassment. Over the years, our civic sense has prevailed, and the intellectuals have sought to address this pain in judicial and non-judicial (rehabilitative) ways. Not just in India, but even in developed jurisdictions, atrocities against women in such forms as rape, dowry death, sexual harassment, acid attacks, trafficking, and child abuse are prevalent and rampant irrespective of geographic area, caste, class, religion, or community, thus making it a globalized form of violence.
Yet, what makes the Indian jurisdiction stand out, is the victim's fear of reporting such heinous crimes to law enforcement, which is partly due to age-old societal concerns and majorly owing to the dragged-out mechanism of justice delivery. It reopens the wounds of victims each day when they beg for justice, and the offender finds a lacuna in the law for bypassing the entire mechanism. We have, over the last decade or so, tried to address the shoddy law—that is, the enforcement mechanism in sexual violence matters—by installing such mechanisms as One Stop Crisis Centres (OSCCs) that serve as a single-window mechanism for reporting on, investing in, and delivering justice. Questions have been raised about the effectiveness of this mechanism, owing to such challenges as strained financial and human resources, typical mechanisms of justice delivery, and untrained professionals. Let us take a plunge into this area for understanding India's legal obligations for stopping such crimes and perpetuating the actual roadblocks encountered by victims when seeking help from the OSCCs.
India's Obligations Under International Law
India is a party to several international conventions, including the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities. Thus, India's central government is obligated to ensure compliance with these conventions by enacting and properly executing appropriate laws.
The 1993 United Nations Declaration on the Elimination of Violence against Women observes that there is an urgency for the worldwide implementation of the rights and protection of women. Article 1 of the Declaration defines the term “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Further, Article 4 asserts that “States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women.”
To curb the menace of offenses against women in our country, and to discharge the obligations under international law and various international covenants, many laws have been enacted, various judicial pronouncements from the High Courts and the Supreme Court have been made, and several amendments to the criminal laws have been promulgated. Despite the existence of all the necessary laws, amendments to required laws, and judicial decisions, the condition of women in India remains the same.
Requirements for a Change in Legal Approach
The year 2013 brought a radical reformation of the legal and judicial structure for handling offenses against women, especially sexual assault. The Criminal Law (Amendment) Act, 2013, codified many new gender-based offenses against women, introduced the required changes to law and procedure, and made the entire legal and judicial system open, responsible, and accountable to victims.Footnote 2 The entire legal procedure has been made more sensitive and less combative for the victims of sexual offenses to empower them to seek legal recourse. The 2013 legislative amendment is unreservedly backed by judicial pronouncements providing for restorative justice for the female victims of such offenses.
Criminal Justice System and Special Support Services
It is well understood that these sexual offenses against women have detrimental psychological, physical, and social impacts on the victims. These victims require specific kinds of support services, ranging from guidance on approaching the Indian legal and judicial system, to psychological and counseling sessions for the victim and her family members. In some instances, securing shelter may also be required to protect the victim from the accused and potentially other persons who may be detrimental to her physical and mental health. The major problem for these victims in seeking legal recourse is their complete unawareness of the criminal justice system and lack of familiarity with the roles of different people involved in the process. Several kinds of support services should be provided to victims to enable them to put the criminal justice system and its machinery in motion. Victims of sexual offenses need assistance that can lead to holistic justice before, during, and after their legal proceedings.
It is of utmost importance to establish special support agencies for every kind of assistance and to meet the victims’ needs under one roof. Victims should not have to run among various agencies and institutions to seek justice; rather, assistance should be made available to them at one location. The support agencies must coordinate the help and assistance that victims require to prevent their re-victimization by the entire process. The most important feature that these agencies should have are empathic staff members who understand the needs and conditions of such victims and can truly appreciate them for standing up against the accused and society in general. These types of support agencies are successfully working in various countries throughout the world.
These agencies and Centres should provide the following services and facilities to such female victims:
1. Help them lodge a First Information Report (FIR) and obtain a copy of the same.
2. Ensure free medical treatment and counseling.
3. Assist them during their medical examinations and in obtaining medical reports and other relevant information.
4. Ensure that compensation and other benefits are provided under various laws, especially under victim compensation schemes.
5. Collaborate with the investigating officer and other persons involved in the case and keep close track of the investigation.
6. Keep track of the accused's bail status.
7. Apprise them of their legal rights during the process, provide proper legal advice and aid, and acquaint them with the entire trial process.
8. Collaborate with the prosecution and arrange meetings between the prosecuting officer and the victim. Victims should be given a proper orientation regarding the deposition process and should be told about the pressure the accused, the defense, and sometimes their own family members may impose.
9. Monitor the stages of the trial and keep the victim apprised of the status.
10. Hold proper counseling sessions for the victims and their family members to reduce the psychological and social impacts of the offense.
11. Provide security and protection from the accused and other members of society.
12. Provide secure shelter and accommodation, if required.
13. Offer any other help or assistance a particular victim may require.
Findings
To aid and assist the victims of sexual offenses and to overcome the problems related to the prevention of sexual offenses against women and their protection and rehabilitation, the central government constituted a commission under the chairpersonship of Justice (Retd.) Usha Mehra on December 26, 2012, just after the horrific gang rape of a medical student in Delhi. The commission submitted its report on February 22, 2013, and recommended the establishment of One Stop Crisis Centres to help victims of sexual offenses in their legal battles against their offenders. Pursuant to the commission's recommendations, the central government approved the establishment of thirty-six OSCCs throughout the country (one for each state/union territory), with the Centres’ operations monitored and examined after six months.
After receiving a successful report about the functioning of these Centres, the government revised the scheme and decided to set up 150 additional OSCCs in different areas of the country. The location of these 150 Centres would be dependent on the number of registered crimes, the size of the female population, and the male-to-female ratio in the various states. All the state governments would need to submit proposals for establishing these Centres within their districts to claim the funds released by the Indian central government. If they did not submit their proposals within a stipulated timeframe, their funds could be distributed among other states, heeding their needs and demands. As indicated in the data cited in Table 1, the fundamental functioning and establishment of a One Stop Crisis Centre is based upon the size of the female population vis-à-vis the actual number of crimes against women reported in the local area jurisdiction by police authorities. This approach was logically based upon the scarcity of resources and bypassed criminal justice data that overlooks unreported crimes due to a lack of access to a complaint mechanism.Footnote 3
Table 1: One Stop Crisis Centres in India
Source: “One Stop Centre Scheme: Implementation Guidelines,” Ministry of Women & Child Development, Government of India (December 2017), at p. 26, Annexure-1, https://wcd.nic.in/sites/default/files/OSC_G.pdf.
For every woman across the country, this was a welcome step. Today, regulating and controlling sexual offenses against women must be given the utmost priority; victims of these offenses must be given due care and attention; and the Indian central government must ensure the victims’ proper treatment and rehabilitation. The OSCCs can potentially be of great help to the victims of sexual offenses—a place where they can seek the services of doctors, police officials, counselors, visiting lawyers, and other professionals under one roof. An OSCC in every part of the country could help the victims to expedite the medical-legal and judicial processes.
In our country, victims of sexual offenses and rape survivors are often neglected and humiliated. The whole problem with combating criminals of sexual offenses and obtaining proper justice lies in the way Indian society thinks about gender and discriminates against women. Though the Constitution of India guarantees equality for every citizen and prohibits discrimination based on sex, in reality, the country fails miserably when it comes to equal social status for women and men. After the brutal Delhi gang-rape incident, the entire country was demanding that more stringent laws be enacted that severely punishFootnote 4 heinous sexual offenses and, concurrently, that reformatory and rehabilitative justice be made available to victims of such offenses. Amidst public pressure after the Delhi incident, in 2013, the central government announced the formation of the Nirbhaya Fund of 3,000 crores of Indian rupees, which was earmarked for the protection, prevention, and rehabilitation of female victims from 2013 to 2017.Footnote 5
Establishment of Institutional Arrangements for Monitoring at the National, State, and District LevelsFootnote 6
For the effective functioning and overall development of these OSCCs, various institutional arrangements were proposed to monitor these Centres at the national, state, and district levels. At the national level, a National Steering and Monitoring Committee was formed, consisting of a Chairperson, who is the Principal Secretary, Ministry of Women & Child Development, along with other members of various ministries and government departments, including the Ministry of Home Affairs, the Ministry of Law and Justice, the National Legal Services Authority (NALSA), the Ministry of Social Justice and Empowerment, the Ministry of Tribal Affairs, the Ministry of Health and Family Welfare, and civil society representatives. Five members serve on this committee on a rotational basis, representing the State Steering and Monitoring Committee.Footnote 7 The National Steering and Monitoring Committee's primary function is to observe and supervise the functioning of these OSCCs on a half-yearly basis. Likewise, in every Indian state, a State Steering and Monitoring Committee has been constituted, which again consists of a Chairperson, who is the Principal Secretary, Ministry of Women & Child Development, and members associated with various government departments.Footnote 8 The objective of constituting the state committee is to observe and evaluate the operations of the OSCCs in the respective states and union territories every three months. At the district level, committees have also been set up to monitor and evaluate the operations and overall development of the OSCCs.Footnote 9
Discussion and Recommendations
The basic idea of establishing OSCCs is to help all women victims irrespective of their religion, race, caste, class, age, or region. For victims who are under eighteen years of age, these Centres are linked to institutions established for the protection and rehabilitation of children constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Protection of Children from Sexual Offenses Act, 2012.
Female victims can approach these OSCCs in any of the following ways:
1. She can go there herself and file a complaint.
2. She can go through any family member, relative, friend, public servant, NGO, volunteer, etc.
3. She can use help lines created for that purpose, which are connected to police stations, hospitals, or other emergency services.
As soon as the Centres receive the complaint, they will immediately send a text message to the appropriate persons in police stations, hospitals, or legal organizations, as required.
Services of the One Stop Crisis Centres
The Indian government has established the One Stop Crisis Centres to help and protect female victims throughout the country so that they can avail themselves of the following services and facilities:
1. Emergency Response and Rescue Services: Emergency response and rescue services are to be provided to female victims. In order to provide these services, the OSCCs are linked to the National Health Mission, 108 services (a free telephone number for emergency services),Footnote 10 PCRs (Police Control Rooms), and hospitals so that if a complaint is registered, a woman can soon be rescued from the given location and sent to a nearby hospital, police station, or shelter home.
2. Medical Facility: A medical facility is to be made available at the OSCCs, and victims are to be directed to nearby hospitals for any required treatment. Examinations are to be conducted per the guidelines issued by the Ministry of Health and Family Welfare.
3. Assistance in Lodging an FIR and other Legal Formalities: The OSCCs are to provide all necessary assistance to female sexual assault victims, starting from filing an FIR to the end of the entire legal proceeding. It is the responsibility of the Centres to make victims aware of their legal rights and remedies and to assist them throughout the legal proceeding.
4. Psychosocial Support and Counseling: Psychosocial counseling services are to be provided to the victims by professional counselors to boost their confidence and make them mentally and emotionally strong so that they can successfully withstand the ensuing legal and social battles they must wage against the accused and society. Counselors must follow their prescribed professional ethics and body of rules.
5. Legal Aid Facility: Legal aid counseling is also to be provided to the victims by expert empaneled lawyers and members of the various legal service authorities at national/state and district levels. Victims are to be offered a choice of lawyers. The purpose of this is to simplify the legal procedure for the victims and, as much as possible, exempt them from attending court proceedings in person.
6. Shelter Facility: A temporary shelter facility is to be provided to the victims, and if any victim requires long-term shelter, arrangements in this respect are to be made with the assistance of shelter homes, Short Stay Homes (a scheme affiliated with the Indian central government to provide temporary housing for women rendered homeless), the central government, or an NGO. Victims, along with a son (up to eight years of age) and daughter (any age), have the right to access temporary shelter at an OSCC. Providing temporary shelters to such victims depends on the volition of the Centre's administrator.
7. Video-Conferencing Service: A video-conferencing facility is to be made available to victims to provide access to expeditious and uninterrupted legal proceedings. The facility is to be open to the victim in the Centre itself to record the statement she wants to submit to police or the court using audio-video electronic means per sections 161(3), 164(1), and 275(1) of the Code of Criminal Procedure,Footnote 11 and section 231(1), with order XVIII, rule 4, of the Code of Civil Procedure. The Centre can undertake this kind of recording only after receiving approval from the Superintendent of Police or a District/Sessions Judge assigned to the area where the incident happened.
The reproduced flowchart indicates the services to be provided through these One Stop Crisis Centres.
Chart 1: Diagrammatic Overview of One Stop Centre: Human Resource and Services, Ministry of Women & Child Development, Government of India
Source: “One Stop Centre Scheme: Implementation Guidelines,” Diagrammatic Overview of One Stop Centre: Human Resource and Services, Ministry of Women & Child Development, Government of India (December 2017), at p. 12, https://wcd.nic.in/sites/default/files/OSC_G.pdf.
If the One Stop Crisis Centres in India were functioning properly, they could fulfill the critical requirements of the above-mentioned services for female victims of sexual offenses. The OSCCs established by the government, however, are doing little to provide the required consolidated services to these victims. The Centres, so far, have not been able to fulfill the objectives for which they have been established throughout the country. The basic concept behind creating these Centres is to provide police, medical, and legal assistance to female survivors of sexual violence under one roof. But due to a lack of awareness and proper orientation of the persons involved in the process, the victims must seek medical assistance at one place and police assistance at another place, which frustrates the purpose of creating these One Stop Centres.
Recommendations:
• The Criminal Law (Amendment) Act, 2013, and other policies designed to help and protect female victims of sexual offenses, should be properly executed.
• Formal training and orientation courses should be offered to all persons and officials involved in the process, such as medical professionals, judicial officers, and police officers, to ensure the smooth handling of these cases.
• These Centres must be suitably equipped and approachable. A monitoring mechanism must be developed to supervise the functioning of these Centres; they need to generate accountability reports regularly, and the Nirbhaya funds must be properly and transparently distributed among the OSCCs.
• The OSCCs must work in tandem with NGOs and other such organizations that are working for women's rights so that the Centres can be made more accessible to female victims of sexual offenses.
• A uniform operating system must be developed, adopted, and executed, which is legally binding and universally applicable to medical professionals, forensic experts, police officers, and judicial officers, so that uniformity in applying the laws, policies, and procedures can be maintained when handling sexual offenses against women.
• Awareness must be fostered regarding the establishment and functioning of the OSCCs, the accessibility of services for victims, and the procedures for obtaining justice in cases of a sexual offense.
• Legal aid lawyers must be reasonably trained to educate and inform victims regarding their right to access justice through the Centres and their right to compensation under various victim compensation schemes.
According to a Ministry of Women & Child Development February 2022 press release, 704 Centres have been “operationali[z]ed” throughout the country.Footnote 12 However, the coordination between the relevant authorities and departments has been unable to ensure their smooth functioning. There is a lack of public awareness about the OSCCs, and the majority of female victims of sexual crimes are unaware that such a facility even exists. Most of the Centres are not effective in providing required services; some of the Centres have apparently been acting more like counseling facilities for matrimonial disputes.Footnote 13
Conclusion
Though the number of registered criminal complaints against rape and other sexual offenses has been increasing since the establishment and distribution of the Nirbhaya Fund,Footnote 14 a majority of Indian women are still afraid to report any sexual offense because of such factors as the fear of being defamed, ridiculed, and humiliated by friends, family, and society, and a criminal justice system that does not provide adequate protection to victims and witnesses. India's central and state governments are disseminating information about the Centres, but the habit of blaming women victims persists, and questions about their dressing habits, sexual history, or past relationships are often asked by persons in authority, including judges, police officers, and politicians. Police officers in our country also play an important role in discouraging female victims to come forward after a sexual assault, as these officers often misuse their powers, and their general apathy towards the victims hampers the investigations. Victims who are socially and economically marginalized are more vulnerable to police atrocities. Sometimes police officers often pressure victims and their family members to refrain from lodging an FIR of rape or to otherwise settle the matter.
Though the concept of establishing OSCCs is admirable, the scheme was set up carelessly and prematurely, without substantial discussions and consultations with relevant bodies and authorities. For these One Stop Centres to function effectively, they need to first be established in coordination with institutions like police stations, hospitals, and courts.
The establishment of One Stop Centres has proved to be a failed project so far. The purpose of creating these Centres is to provide female victims of sexual offenses with necessary and related services under one roof, but due to a dearth of sufficient resources and trained officials, they are unable to adequately serve these victims. As sexual offenses against women in India have been increasing, it is time for the central government to realize that the functioning of the OSCCs needs to improve. It must work towards this end so that the female survivors of sexual crimes can fight their battles against offenders and society with ease and dignity.
