Weak Laws against Acid Attacks on Women: an Indian Perspective

Abstract

Acid attacks, especially on women, have seen an alarming growth in India over the last decade. While these attacks can be attributed to various factors such as the social weakness of women in a male-dominated society, the situation is exacerbated by the general neglect of the lawmakers. As acid is inexpensive and easily available, it serves as an ideal weapon for the perpetrators. Further, as this offence is bailable in certain situations, the punishment does not act as a sufficient deterrent in most cases. This paper describes the horrendous effects that acid attacks have on the victims physically, psychologically and socially. It also examines the contemporary laws governing acid attacks on victims and offenders. Ideas for a better legal approach will also be examined with special reference to acid attacks as a crime, and the validity of specific legal provisions for female victims.

Introduction

Acid attack is a particularly vicious and damaging form of violence in many South Asian countries where acid is thrown at people's faces in order to deface or kill them. The overwhelming majority of the victims are women, and many of them are in the prime of life. The victims are attacked for many reasons. In some cases it is because a young girl or woman has spurned the sexual advances of a male or either she or her parents have rejected a proposal of marriage. Recently, however, there have been acid attacks on children, older women and men. These attacks are often the result of marital disputes, family and land disputes, dowry demands, political rivalries, or a desire for revenge.

Acid attacks have been documented in many parts of the world but the number of such incidences is on the rise in Bangladesh, India, Pakistan,¹ Afghanistan² and Cambodia.³ With reference to the Indian subcontinent, statistics reveal that Bangladesh has the highest number of acid attacks reported annually. Between 1999 and 2010 there were about 2,500 reported cases of acid attacks in the country.⁴ A peculiar feature of these attacks is that 80% of the reported cases in the subcontinent are on women and close to 70% of these women are under 18 years of age.⁵ The New York Times (26 December 2001) reports that kerosene as well as acid has become a weapon of choice for attacks on wives in India. The numbers reported above may appear insignificant in the face of more than a billion people who live in South Asia today. But these numbers are only the tip of the iceberg, considering that most incidents in rural areas go unreported.⁶ The incidence of such attacks is much less in other parts of the world, although developed nations and developing nations such as the United Kingdom,⁷ USA,⁸ Malaysia⁹ and China¹⁰ have also experienced such cases in the recent past. What makes cases of acid throwing even more awful are the grotesquely disfigured victims who are now struggling to survive in society.

This paper examines the physical and psychological impact of acid attacks and how the law in India is inadequate to deal with ssssthem. How should this particular crime be viewed and what punishment does it deserve? What measures can be taken to strengthen the law to deal with acid attacks? Answers to these questions may hold the key to a better understanding of acid attacks, and suggest measures that can be taken to curb the menace.

Description of an acid attack

An acid attack, more formally known as vitriolage, is defined as the act of throwing acid on to the body of a person “with the intention of injuring or disfiguring her out of jealousy or revenge”¹¹ resulting in burning and dissolution of the victim's skin, connective tissue and even bones.¹² The long term consequences of these attacks include blindness and permanent scarring of the face and body.¹³ The victim's physical appearance is damaged forever, leading to the debilitation of her psyche; this generally brings about a secluded life for her. Hydrochloric and sulphuric acids are the common acids of choice, although the use of phosphoric and hydrofluoric acids have also been documented.¹⁴ In this regard, it must be said that acids are easily available and inexpensive. They cause the skin tissue to be destroyed, often exposing the bones beneath the flesh, sometimes even dissolving the bone. When acid attacks the eyes, it damages these vital organs permanently.¹⁵ Many acid attack survivors have lost the use of one or both eyes.

The scars left by acid are not just to the skin: victims are very often faced with social isolation and ostracisation that further damages their self-esteem, self-confidence and seriously undermines their professional and personal future. The disfigurement of their face or body handicaps them in many ways.¹⁶ Women victims who have survived acid attacks have great difficulty in finding employment, and if unmarried, have very little chance of ever getting married in a country like India. The victim is traumatized physically, psychologically and socially.

The impact of an acid attack: the Indian scenario

A woman aged 22 sustained burns after a man threw acid on her at the Goregaon railway station, Mumbai, India on Tuesday 31 January 2012. The victim was admitted to a private hospital. The offender escaped before passers-by could apprehend him.¹⁷

In another incident, a 19-year-old woman, Anu, undergoing training in Chandigarh, India, to become a nurse, was returning home on 28 January 2010 with two of her friends when an unidentified malefactor threw acid in her face. She suffered from burns to her face, neck and arms, resulting in her withdrawal from college, as well as society in general. Hers is a difficult case, requiring intensive surgery far beyond the means of her family. The perpetrator remains unpunished even today, one-and-a-half years after the incident.¹⁸ Needless to say, Anu can never look the way she did before the attack, with or without surgery. Ten women were injured in an acid attack on a local train in West Bengal.¹⁹

Acid attacks are not rare occurrences; statistics show that there is no dearth of recorded incidents of acid attacks in India. In spite of the fact that many cases go unreported due to the victim's fear of further hostility or social stigma, 174 cases were reported in India in the year 2000.²⁰ Even more surprising is the fact that verdicts have been delivered in only nine of these cases.²¹

Hundreds of such incidents occur across India every year and many go unreported. In many of the reported cases, the accused is never apprehended. Finally, even in those cases where the accused is brought before the court, the law often seems too lenient to secure justice for the victims. From the investigatory stage to the trial, the criminal justice system in India exhibits major gaps in providing justice to victims of acid attacks. This is very unfortunate but we hope that an understanding of the combined physical and psychological effects of an acid attack and the gravity of this offence may improve appreciation of the severity of the phenomenon.

Consequences of acid attacks – physical effects

In almost all cases of vitriolage, concentrated acid is thrown at the face of the victim. Acid, being a highly corrosive substance, causes burning of the facial tissue in the affected areas.²² Less severe effects of acid contact with the skin would include redness, permanent hair loss and burning. In higher concentrations, it leads to permanent scarring, disfigurement, destruction of vital body organs, pulmonary disorders, and even death. At times the acid eats through the fat and muscle under the skin and dissolves the bones.²³ Eyelids, lips, and even the nose can burn off completely. An immediate danger is respiratory failure, as the nostrils may close and the neck may swell disproportionately, and the possibility of inhalation of acid vapours.²⁴ The physical injury is irreparable and becomes a breeding ground for other dangerous diseases because of the risk of infection in the resultant dead tissue.

The 226th Report of the Law Commission of India lists the physical effects of an acid attack as in Figure 1: ²⁵

Figure 1

Physical effects of an acid attack, 226th Report of the Law Commission of India

Psychological and socio-economic consequences

The obvious and gruesome physical impact, however, does not overshadow the psychological, social and economic consequences of acid attacks. The trauma of an attack leads to the development of depression, fear, insomnia, nightmares, paranoia, and/or fear of facing the outside world, headaches, weakness and tiredness, difficulty in concentrating and in some cases, psychosis.²⁶ Victims feel perpetually depressed, ashamed, worried and lonely. Living with the embarrassment and social stigma of an attack that cannot be hidden from the outside world usually confines them to their homes.²⁷ The victim's life gets derailed as every time she looks in the mirror she is reminded of her present insecurity as well as the hopelessness of the future.

Any physical disabilities that may result from an attack add another dimension to the victim's suffering.²⁸ For instance, if the acid affects the eyes and causes blindness, it becomes impossible for the victims to get jobs, earn their living, or get married. In most cases, the victims become completely dependent for their daily sustenance.²⁹ An added burden for the victim's family would be medical expenses, as they are beyond the means of the families of many victims. In conclusion, we must note that the psychological, as well as social and economic effects are as absolute and incurable as the physical ones.³⁰ It has, therefore, been argued that acid attacks need to be classified as a separate offence and harsher punishment needs to be prescribed.

The gender aspect of this issue

The financial dependence of women on men can cause problems and resentment in times of financial stress. Deteriorating economic conditions, high unemployment rates among men, the increasing number of landless households, and the lack of agricultural work for male labourers,³¹ are all reasons for their frustration. Thus, women who are burdened with the onus of earning for the family are often victimized by their husbands when they fail to live up to their expectations as homemakers in their conventional gender roles.

About 80% of all acid attack victims in the Indian subcontinent are women. In light of this fact, it would be foolhardy to suggest that acid attacks are not gender-related. The Law Commission of India has stated that the majority of acid attack victims are women:

“…particularly young women for spurning suitors, for rejecting proposals of marriage, for denying dowry etc. The attacker cannot bear the fact that he has been rejected and seeks to destroy the body of the woman who has dared to stand up to him.”³²

“The Bangladeshi men throw acid on women's faces as a mark of their masculinity and superiority, to keep women in their place”, according to Anwary.³³ This analysis would apply to India as well, as there is a strong patriarchal culture running through the veins of Indian society too. The 226th Report of the Law Commission of India adds that acid attacks “are used as a weapon to silence and control women by destroying what is constructed as the primary constituent of her identity.”³⁴

The overemphasis on the physical appearance of the fairer sex in patriarchal societies is responsible for the increased incidence of acid attacks. Families of young women are very concerned with the preservation of their daughters’ marriageability.³⁵ In addition to her physical appearance, a woman's virginity is another resource in the marriage market, and therefore, women's involvement in romantic relationships before marriage is taboo. Vindictive lovers, on being turned down for marriage by women or their families, resort to acid attacks to destroy the woman's appearance and relegate her to a terrible fate.

In a case decided by the Calcutta High Court in 2007, the accused had thrown a bottle of acid over the victim outside her house. The victim succumbed to the extensive acid burns that she received. The motive for the attack was a personal grudge held by the accused against the victim, as the latter had snubbed the proposals of the accused.³⁶

Property disputes are another cause of acid attacks on women. In a case decided by the Supreme Court of India in 2007, the accused husband had thrown acid on the deceased, who was his wife, and his daughters, to gain succession to the wife's property.³⁷

The motivation for acid attacks on women can be attributed to various factors and feelings. Some perpetrators use acid to defile and debase the victim's body in an expression of conscious anger, in an attempt to humiliate them. Others nourish their deep-seated feelings of insecurity by expressing authority and power by throwing acid on women, in an effort to exhibit their permanent control over the woman's fate. Alternatively, it can be said that acid attacks are a method of intimidation that men use to keep women in a state of fear.

The possible causes of acid attacks

A. The lack of specific law

Perhaps it is because acid attacks are not considered to be very frequent in India that there is no specific legislation on the subject yet. The current legal provisions under which the accused is charged are all under the Indian Penal Code, 1860 (IPC). They are as follows:

Section 320 (Grievous hurt)

Section 322 (Voluntarily causing grievous hurt)

Section 325 (Punishment for voluntarily causing grievous hurt)

Section 326 (Voluntarily causing grievous hurt by dangerous weapons or means)

A perpetrator charged under Section 325 may be imprisoned for a term of up to seven years and also fined. Under Section 326, the punishment is a bit harsher. The perpetrator may be imprisoned for life, or for a term extending to ten years, and fined. What is more disturbing is the fact that an offender booked under Section 325 can get bail under the Code of Criminal Procedure 1973.³⁸ Offences booked under Section 326 however are non-bailable.³⁹

The Law Commission has vehemently criticized the definition of “grievous hurt” given in Section 320, as its ambit is not well defined. It neither accounts for grave injuries deliberately inflicted on important parts of a woman's body nor covers attacks whereby multiple types of grievous hurt are inflicted, as is the case with acid attacks.⁴⁰

Also, to qualify as grievous hurt under the IPC, the offender must not only cause such hurt, but also intend it, or know himself likely to be causing such hurt. It must be noted that the mens rea element for this particular offence can be exceedingly difficult to prove. The mens rea element must be proved even if the offender is booked under Section 307 of the IPC (attempt to murder).

B. Inadequate compensation

Another major area where the existent law is insufficient relates to the payment of compensation to the victim. The victim has to incur huge medical expenses in an attempt to salvage whatever she can of her physical appearance. Medical treatment includes plastic and reconstructive surgery, which is very expensive and usually a tremendous burden on the families of the victims. Many of the victims are from rural or suburban areas, where such medical expertise and facilities are unavailable. The treatment period is prolonged and the treatment is rarely completely successful. This increases the financial as well as psychological burden on the victims and their families.

Regrettably, there are no directives in Indian law as to the amount of compensation to be paid to the victims. Therefore, the amount payable is erratic, and in most cases, ridiculously inadequate. For instance, in Balu v State Represented Inspector of Police,⁴¹ a husband who had thrown acid on his wife was ordered to pay a meagre amount of Rs 2,000 (about £25). Numerous examples can be cited where the victims have been paid paltry sums as compensation.⁴²

C. Uncontrolled and unregulated sale of acid

One of the contributory factors to the increasing incidence of acid attacks is the absence of law regulating the sale of acid to the general public. Hydrochloric and sulphuric acids are very easily available in medical and other stores. Acid is also cheap: a litre can be obtained for as little as Rs 25 (half a US dollar) in most places.⁴³ Acid sales can be regulated only for industrial purposes in India, by the Manufacture, Storage and Import of Hazardous Chemicals Rules 1989. This easy and cheap availability of acid, coupled with the lack of medical infrastructure to provide for the victims, makes the problem more serious.⁴⁴

Criminal liability and the essence of a crime

A. The element of intention (mens rea) and acid attacks

Conventional legal wisdom holds that the conceptual essence of crime consists of three conjoined and essential elements: (1) the criminal act (which, in legal parlance, is termed the actus reus), (2) a culpable mental state (mens rea), and (3) a concurrence of the two, so the essence of criminal conduct consists of a concurrence of a criminal act with a culpable mental state. An acid attack carries all three of these essentials, and therefore, it is definitely a crime.

“All killing that is perpetrated by any kind of wilful, deliberate and premeditated killing, with express malice aforethought, is murder of the first degree. …”

Judge Lance Ito in the double-murder trial of O J Simpson, 1995, California.⁴⁵

While mens rea may not be easy to prove in certain offences like murder, its presence is quite evident in cases of acid attacks. Throwing acid at a person's face is a deliberate act. It requires the attacker to procure the acid first and this proves that the crime is premeditated. Thereafter, the attacker throws the acid into the victim's face, fully aware of the consequences of his act. This shows that the attacker's actions are completely wilful. Also, the presence of a motive in most cases strengthens the supposition of the attacker's mens rea. Having established that an acid attack is a crime that has a horrific impact on the victim, it would be better if there were stringent legal provisions which dealt specifically with it.

B. Comparing acid attacks with rape

An acid attack is more serious than rape because it destroys both physical and mental health. Hence in our view of criminal jurisprudence, acid attacks would appear to be a worse offence than rape and should carry a greater penalty.

Justice Arijit Pasayat, a former judge of Supreme Court of India has said:

“… While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female …”⁴⁶

Rape is coercive sexual assault without the consent of the victim, and it leads to severe traumatization often resulting in psychological disorders for the victim. An acid attack, as stated earlier, has effects both physical and psychological on the victim. It affects the physical being of the victim more than rape does, as it usually results in erosion of the skin, dysfunction of vital organs and loss of life or limb. Also, acid attacks scar the victim's psyche more violently than rape. While the effects of rape can be hidden by the victim from the world at large, the same cannot be said of acid attacks. Acid leaves blemishes which can neither be removed nor concealed, and the victim thus has to carry the social stigma for the rest of her life.

Comparing the gravity of the two offences, it appears that there is no specific legal provision to deal with acid attacks. Under section 375 of the IPC, the punishment for rape is imprisonment for life, or imprisonment for up to ten years, and a fine. Additionally, the offence of rape is non-bailable.⁴⁷

Solution to the issue

A. Judicial measure

The approach of the judiciary when dealing with cases of acid attacks should be similar to, if not harsher than, that in cases of rape. Certain safeguards⁴⁸ have been outlined by the apex court for the trial of rape cases. These guidelines laid down in Delhi Domestic Working Women's Forum v Union of India [1995] should be implemented in trials of acid attack cases also, such as the protection of the dignity of the victim, provisions for ample compensation and adequate legal aid to the victim. In an epoch of judicial activism in India, perhaps it would be worthy for the apex court to lay down such guidelines to fill the legal vacuum that exists with respect to this particular crime. The Indian judiciary has done this in the past, for instance, in respect of sexual harassment at workplaces in Vishakha v State of Rajasthan.⁴⁹

In acid attacks the physical appearance of the victim is badly damaged and her future prospects are rendered bleak. Those guilty of this crime should be held responsible for redress of the effects of this crime on the sufferer to the greatest extent possible. The damage caused by an acid attack cannot be measured in monetary terms alone. Therefore, a combination of retribution and the deterrent and reformative theories of justice must be applied in these cases, and the perpetrator deserves punishment through imprisonment as well. Only then will justice be done because as Domitus Ulpian⁵⁰ put it, “Justice is the constant and perpetual will to allot to every man his due.”

B. Effective legislative measures – proposed law

A new legal provision may be adopted. The Constitution of India through Article 15(3) talks about special legal provisions for women and children. It is an exception to the general rule provided under Article 15, which talks about the prohibition of discrimination against citizens. Clause (3) of this Article states that

“…Nothing in this article shall prevent a State from making any special provision for women and children.”⁵¹

The word “for” in clause (3) signifies that special provisions can be made “in favour of” women, and not against them.⁵² The logic behind this clause has been impeccably summed up by the apex court in Government of Andhra Pradesh v P B Vijaya Kumar:⁵³

“… the insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is … to empower them in a manner that would bring about effective equality between men and women that Clause (3) is placed in Article 15 … to strengthen and improve the status of women.”

Bearing in mind that most acid attack victims are women, having a special law for them would not be inconsistent with the Indian Constitution.

Therefore, the introduction of specific legislation with regard to acid attacks becomes imperative. The 226th Report of the Law Commission of India has suggested the introduction of Section 326A into the IPC to deal specifically with acid attacks.

Namely:⁵⁴

“326 A. (i) Hurt by acid attack – Whoever burns or maims or disfigures or disables any part or parts of the body of a person or causes grievous hurt by throwing acid on or administering acid to that person, with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punishable with imprisonment of either description which shall not be less than 10 years but which may extend to life and with fine which may extend to Rs. 10 Lakhs.

Provided that any fine levied under this section shall be given to the person on whom acid has been thrown or administered.

(ii) Intentionally throwing or administering acid – Whoever throws acid on, or administers acid to, any person with the intention of causing burns or maiming or disfiguring or disabling or causing grievous hurt to that person shall be liable to imprisonment of either description for a term not less than 5 years but which may extend to 10 years and with fine which may extend to Rs. 5 Lakh.”⁵⁵

Part (i) of Section 326A deals with situations where actual damage is caused to the victim's physique by the intentional throwing or administration of acid by the perpetrator. Therefore the punishment prescribed for offences under this subsection are more severe – a longer period of imprisonment (extendable to life) and a greater fine. Part (ii) applies to those attacks where the attacker has the intention of causing damage, but irreparable physical damage is not caused to the victim. The punishment is comparatively more lenient. Additionally, it is encouraging to note that offences under both these subsections would be non-bailable.

The Law Commission has also suggested the addition of Section 114B to the Indian Evidence Act, 1872. It reads:

“Section 114B. Presumption as to acid attack – If a person has thrown acid on, or administered acid to, another person the court shall presume that such an act has been done with the intention of causing, or with the knowledge that such an act is likely to cause such hurt or injury as is mentioned in Section 326A of the Indian Penal Code.”⁵⁶

Amendments proposed in the Indian Evidence Act

Insertion of new Section 114B Presumption as to acid attack:

“When the question is whether a person has committed the act of throwing acid on the woman the Court shall presume, having regard to the circumstances of the case and the statement of the victim, that such person had thrown acid on the woman.”⁵⁷

The addition of this section will speed up the trial process by doing away with the onus of proving mens rea, which lies on the prosecution.

C. Better victim compensation

The National Commission for Women (NCW) has also suggested the inclusion of Section 357A in the Code of Criminal Procedure 1973 (CrPC) for the purpose of defraying of expenses, in order to deal with the matter of compensation better.⁵⁸

The NCW has submitted another significant proposal of setting up a National Acid Attack Victims’ Assistance Board. It has clearly set out the structure and working mechanism of this Board. It provides for complete medical treatment as well as legal advice to the victims. It strongly campaigns for the rehabilitation of these victims and for them to be provided with all the financial support possible.⁵⁹

D. Regulation of the sale of acid

Finally, one of the most efficacious ways of curbing acid attacks would be to control the sale of acid over the counter. As stated earlier, at present acid is abundantly and cheaply available in Indian markets. The Law Commission has observed that there are no regular inspections of stocks of acid sales as there are for explosives.⁶⁰ It would be prudent to appoint government officials for the purpose of keeping track of acid sales and ensuring that it is not purchased for purposes other than scientific and academic research. The government could set up a licensing authority so that only those who have the requisite clearance from the government for having access to acid can purchase it. This would hopefully lead to fewer acid attacks in the near future.⁶¹

Suggestions

Considering the impact and increasing incidence, the crime appears more atrocious than at first glance. It is a premeditated crime – one which requires tremendous ill-will on the part of the perpetrator – and therefore it should be punished severely. In addition to this, establishing a sound victim compensation scheme in the country for such crimes is vital for the provision of justice. Here therefore are some suggestions:

For the police to conduct investigations in acid attacks correctly and thoroughly with the use of specially trained gender-sensitive police officers

For the respondent to make available immediate and continuing medical facilities to all victims, where doctors and medical staff are trained to deal with the injuries properly

To strictly control the production, distribution and storage of toxic acids and regulate the sale of same

For the judiciary to conduct speedy trials and issue directions to process compensation

To punish the perpetrators appropriately, with a minimum punishment of 10 years’ imprisonment irrespective of the injury caused and not grant bail in similar cases

Imposition of a fine should not be an alternative to imprisonment

Conclusion

It is evident from the above discussion that acid attacks can be described as one of the grossest violations of human rights of women in Indian society today. Women have the right under International Human Rights Law, specifically the Convention on the Elimination of All Forms of Discrimination against Women 1980 (CEDAW), to be free from such violent attacks. Moreover the United Nations General Assembly passed the Declaration on the Elimination of Violence against Women in 1993. Article 4(f) of this declaration recommends member states to develop preventive approaches for violence against women by legal measures.⁶² Furthermore numerous rights guaranteed under the Indian Constitution are violated when acid attacks are perpetrated against women. Article 14, equal protection of the law, is routinely violated when police fail to conduct a timely investigation and harass the victims instead of investigating the crime. Article 15(3) obliges the state to make special provisions for protection of women and children but the Indian government has failed to do so by not making any provisions or arrangements for the welfare of acid attack victims and their children.

Another very effective measure could be greater awareness and more sensitive and mature handling of these cases by the media. The media can be instrumental in raising public and national sentiment against this crime and its perpetrators, which in turn could influence the authorities to take a firmer stand against acid attacks. It is our sincere hope that the dismal condition of the legal apparatus with regard to acid attacks will be improved, so that the victims’ problems are recognized and Indian society becomes a safer place for women.

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