A “Developing Nation” Forever? Why India’s Flawed Judiciary System Is Impairing Its Development Trajectory

A “Developing Nation” Forever? Why India’s Flawed Judiciary System Is Impairing Its Development Trajectory

Conventional development theory has often considered economic measures (i.e., GDP) to be a primary development indicator. Economic liberalization and democracy also play into this unilinear model of development. However, the simultaneous growth of human development is sidelined or assumed to be inevitable when it comes to developing economies.

The Bombay High Court recently ruled that a 39-year-old man groping a 12-year-old child was not “sexual assault” due to the lack of “skin-to-skin contact.” Therefore, this limited his charges to molestation under the Indian penal code instead of sexual assault of a minor under the POCSO act, revealing the loopholes in India’s outdated judicial system. While India, the largest democracy in the world, is globally regarded as an economic force to be reckoned with, such rulings and loopholes in the judiciary system imply an uneven, and arguably stagnant, development in terms of women’s rights and safety in India. This should hamper broader understandings of development in India.

On January 19th, Bombay High Court Judge, Pushpa Ganediwala, found that “skin to skin contact with sexual intent” was a prerequisite for the accused to be tried under the POCSO act of 2012 which has minimum sentencing of 3 years imprisonment with no bail. The Protection of Children from Sexual Offences or,  POCSO Act, was created to “protect children against offences like sexual abuse, sexual harassment and pornography”. The act served to provide trials conducive to the child’s welfare and appropriate punishment of perpetrators. However, the arbitrary nature of “sexual intent” prompted judge Pushpa Ganediwala to find the accused not guilty of sexual assault as “The act of pressing the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault.”

Therefore, the defendant was acquitted from charges under the POCSO Act while maintaining his conviction of outraging a woman’s modesty under IPC section 354. Her ruling rightfully sparked national outrage and caused concern over the dangerous precedent in terms of fair deductions of the law, especially when dealing with minors. Moreover, her justification that “ the stringent nature of punishment provided for the offence (under POCSO)… [means that] stricter proof and serious allegations are required” suggests a greater willingness to raise suspicion over the survivor in the interest of the defendant as opposed to making efforts to believe the survivor and support their mental wellbeing. 

Current estimates suggest that India is projected to be the third-largest economy by 2025, following the US and China. However, despite rapid economic growth, India places 131st out of 189 countries on the Human Development Index due to widespread poverty, with 25% of the population living on less than $1.25 a day. Economic models of development procure a linear development trajectory for countries transitioning from “traditional societies’ based on subsistence farming, to a final stage: “the age of high mass consumption.”

This final stage is characteristic of the modern capitalist economies. While India’s vast internal diversity complicates its positioning in the model, for the most part, it would be placed between the third stage, “Take-off” and the fourth stage, “ drive to maturity.” The late 1980s saw India liberalizing its economy by encouraging foreign transnational corporations to set up in India. The gradual accumulation of wealth and greater employment distribution in manufacturing industries enabled greater access to services including entertainment, healthcare and so forth. All of which are indicative of development. The assumed multiplier effect suggests that, ideally, the wealth would trickle down and eventually aid in improving governmental infrastructure and services provided to the general public. So why then is India still considered a developing country? 

Following Amartya Sen, development scholars use a capabilities approach to development that prioritizes individuals’ real access to a good life beyond economic metrics. In this article, the emphasis is on the lack of progress in protecting women and children under India’s outdated judicial system.

Inequality, class discrimination, and abuse of trust by authorities make access to a fair judicial system almost impossible. According to a 2019 NCRB report, India saw over 4 lakh (400,000) reported crimes against women. The report included 32,033 rape cases, averaging 88 rape cases a day, a grim reminder of women’s worsening safety in India. Insufficient forensic labs, the country’s low conviction rate, “fast-track courts and investigators,” all contribute to these worrying figures. Moreover, it takes international outrage and domestic pleas for reformation following horrendous crimes, such as the Nirbhaya (2012) rape case, for efforts to evolve the judiciary system to occur. Rape was first enacted as part of the Indian Penal Code (IPC) in 1860 during India’s British rule. IPC Section 375 made “punishable the act of sex by a man with a woman if it was done against her will or without her consent.”

Furthermore, sex with or without the consent of a girl under 18 is also considered rape. Nonconsensual sex, however, with a wife above 15 years of age, is not considered rape.

Convictions of rape call for seven years to life imprisonment. These laws remained unchanged for over a century until the Mathura custodial rape case in 1972, involving the rape of a young girl by a policeman in a police station. After reaching the Supreme Court,  the verdict in 1978 claimed that the absence of injury on the girl following intercourse indicated “that the alleged intercourse was a peaceful affair.” Widescale protests over the verdict prompted amendments to the Criminal Law Act of 1983, which “presumed that there is the absence of consent in certain prosecutions of rape if the victim says so”, including custodial rape cases.

It was also punishable to disclose the identity of rape victims publicly. Once again, it was only after the 2012 Delhi rape case that amendments were made to increase jail terms for most sexual assault cases and include the death penalty for cases that result in the death of the victim or them being left in a vegetative state. Additionally, new offences under the act include “use of criminal force on a woman with intent to disrobe, voyeurism and stalking.”  

While the reasons for India’s uneven economic and human development are complex and involve a history of systematic class discrimination and foreign ‘one-size-fits-all’ institutions of development, contemporary inequality is undeniable. The neoliberal economic policies adopted, fundamentally exclude the poor, contributing to the state’s underperformance on the human development index. The UNDP’s Human Development Report 2020, revealed that not only did India’s overall rank drop but “per capita income fell, health deteriorated, and education was greatly impacted.” Divestments in girls’ health and education contributed to the lowering of greater malnutrition.

While India boasts economic growth figures that exceed 6%, holistic development cannot be achieved until policies and legislation consider grassroots inequalities. The example of the Bombay High Court ruling is in no way unique. Still, it reveals the negligence given to reforming existing legislation that has stigmatized victims of sexual abuse for centuries. The taboo around sex and sex education in India is rooted in the cultural belief that women are responsible for preserving the family’s reputation in traditions.

Such essentialized gender roles translate into legislature which pins the blame of sexual abuse on the victim or constructs suspicion over their claims. The ambiguity over what is “sexual intent” reflects the lack of consideration for the survivor’s trauma and experience. Therefore, until India makes greater attempts to reconstruct its moral conscience, or close the loop-holes in its laws that protect perpetrators from higher sentences, India’s HDI will continue to hinder its overall development, limiting it to remain a“developing nation” forever. 

Edited by Arielle De Leon

Photo credits: “Lady Justice” by  Tingey Injury Law Firm, published on May 20, 2020, licensed under Unsplash. No changes were made.

 

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