The death sentence to the four accused in the December 16 rape and murder case was predictable. Nirbhaya’s family, and many others, feel an understandable sense of anger vindicated.
This moment, however, isn’t a moment for unseemly celebration.
It should be one for quiet reflection. A moment to remember Nirbhaya, and the many thousands like her whose hope for justice is still remote.
Whatever we feel at this moment, we cannot take comfort from any illusion that hanging four rapists will ‘deter’ rape. In the same court that this verdict was delivered, 20 out of 23 rape cases resulted in acquittals. With such low conviction rates, rapists will still feel pretty secure. Surety of punishment in every case of violence against women, not severity of punishment in a handful of cases, would be a real deterrent.
What comes in the way of convictions in rape cases? There has been much praise for the high standard of investigation and prosecution in this case. We do indeed need an expansion of forensic examination facilities, and an equally dedicated investigation and prosecution in every criminal case. But one question does arise: in the absence of forensic evidence, in the absence of a witness apart from the survivor, in the absence of gruesome injury, is justice impossible in cases of rape? For the vast majority of women who are raped, rape leaves negligible physical injuries.
For women in rural India, collection and investigation of forensic data is almost impossible. For these women, their testimony, as sole witnesses to the crime, is the only evidence of weight. Law demands that such evidence, as long as it is reasonably credible and consistent, be the basis for conviction. But in real life, matters are different. From the police thana to the courtroom, it is the rape survivor’s word, her ‘character’, her ‘modesty’, that are put brutally on trial.
Following the recent Mumbai gang-rape case, a former Mumbai Police Commissioner YP Singh, made the outrageous assertion on a national TV channel that 90 per cent of rape complaints were false. How did he deduce this? Well, he said, most rape complainants are not landing up severely injured in hospital! When this is the attitude of the law enforcers in most cases of rape, how can we tell ourselves death penalty in one case will be a deterrent? Rapists can just count on the fact that cops and most people will tend to believe them, rather than the survivor!
The women’s movement, in a united statement released in December 2012, had unequivocally held that death penalty was not a deterrent to rape, and could become an incentive to the rapist to kill rape survivors. The Justice Verma Committee too held this position.
Yesterday’s verdict took recourse to the Supreme Court injunction that death penalty be meted out in the ‘rarest of rare cases’, where the ‘community’s collective conscience is so shocked’ that it will expect the courts to inflict the death penalty. There lies the rub.
What, then, shocks our collective conscience? Do we somehow feel it is less heinous a crime when a father, an uncle, a spiritual figure, a teacher, a friend or neighbour, or some other ‘respectable’ man molests a woman, violating her trust? The brutality witnessed on a bus on December 16th in Delhi was truly shocking.
Are we less shocked when the same brutality is committed, not by an opportunist gang of deadbeats, but in an organised, cold-blooded manner by men in uniform men who rape in the name of ‘national security’? Thangjam Manorama was picked up from her home, gangraped and murdered with bullets in her vagina in 2004 by Assam Rifles personnel.
Manipuri women protested without their clothes. But the perpetrators, protected by the AFSPA, are yet to face trial! The perpetrators of horrendous gangrapes and atrocities against Muslim women in Gujarat in 2002 still boast of the political protection they enjoy. The judicial system failed to find the public mass rape and murder of a Dalit family at Khairlanji to be ‘rarest of rare’.
Is it really just, to allow the decision to take away a life to be so subjective, so sensitive to public perceptions of the heinousness of a crime, rather than strict judicial standards? The Supreme Court needs to be told that it devalues and insults women when, in a recent instance, it upheld death penalty for a killer on the grounds that he killed a son, a ‘male heir’ on whom the ‘lineage’ of the family rested!
The movement that followed December 16 was remarkable mainly for the way it shifted the discourse from women’s ‘protection’ to women’s autonomy and freedom. Instead of remaining confined to retribution, it offered a ringing challenge to the culture of victim-blaming, demanding accountability from systems of policing and justice.
There is a real danger that the predictable verdict of death sentence could choke that quest for real change, that can free women from fear.
If we as citizens demand death penalty, it is all too easy for political leaders to join that chorus. After all, they don’t have to actually do anything about it: conviction and sentencing is up to courts. In the process, they get to sidestep the real issues on which we expect them to deliver. Do governments, Parliament and Assemblies plan to spend on more courts and judges (India has one of the lowest ratios of judges per million persons), so that every citizen can be assured of timely trial and justice? Will they set up rape crisis centres across the country? Will they ensure relief and rehabilitation to every survivor of gender violence in the country? Will they take stern action against politicians in their ranks, and cops who blame women for rape?
The writer is secretary, All India Progressive Women’s Association and was active in the movement that followed December 16.