The Delhi gang-rape verdict: death penalty and its discontents

Most have welcomed and even celebrated the pronouncement of death penalty in the Delhi gang rape and murder case that resulted in unprecedented protests. However, not many know why the court cited four aggravating circumstances, which outweighed the mitigating factors while considering capital punishment for murder.

First, the court argued that the ‘offence in the present case has been committed in a extremely brutal, grotesque, diabolical, revolting and thus dastardly manner so as to arouse intense and extreme indignation of society’.

In other words, the brutal nature of violence is directly linked to the quantum of indignation of society; and some argue to the quantum of publicity accorded to this protest. For the special court, the nature of the “extreme and intense” indignation means recognizing and endorsing the dominant narrative of the retributive public.

Other kinds of competing indignant narratives about justice do not find representation in the judgment. In this sense, the judgment mirrors and legitimises dominant representations of a retributive public, although in the name of all indignant citizens, assuming retribution means justice.

The second aggravating factor cited is the ‘demonstration of exceptional depravity and extreme brutality’. In other words, murder becomes exceptional due to the pornography of the violence.

Murder in this case itself is sexualized or pornographic, wherein mutilation and killing is built into the temporality of rapacious pleasure. Yet this is not an exceptional judgment since murder and rape has been seen as fit for the death penalty in other trials, the finding of capital punishment in this case, merely reasserts law’s violence.

Law’s violence, however, remains phallocentric in its logic as evident from the fourth aggravating factor. The ‘grave impact of the crime on social order’ refers to a crisis wherein a threshold of tolerance is transgressed which the judgment must now restore.

Not only must law’s violence be demonstrated in order to maintain law’s legitimacy, but the trial also must resurrect the vengeance of law towards excessive violence. 

This is primarily a conversation between heterosexist men, and about a heterosexist male defined social order, which demands law’s violence in response to “excessive” male violence. After all, if the pact between heterosexist men breaks down and men cannot protect their women anymore, a patriarchal social order is plunged into a state of crisis.

The trial communicates a message that this excessive exchange of violence between men of unequal status must find retributive logic to restore the phallocentric social order. In the four aggravating reasons, the third reason directly addresses the dead victim. The court cites the ‘extreme misery inflicted upon the prosecutrix’ before her tragic death as an aggravating circumstance.

The victim’s trauma is reduced to a medicalized, or psychologized emotion, as a state of extreme unhappiness. The extreme form of humiliation and indignity, which resulted in the annihilation of life, does not find representation in the languages of rights and dignity.

In the retributive language of evoking law’s vengeance, the articulation of sexual violence as a form of political terrorism against women, which is tolerated, normalized and regulated by law and society, does not have a place.

Retribution speaks about raped women’s suffering in phallocentric languages, which makes this very suffering opaque.

For instance, such suffering is rendered opaque when rape survivors are likened to living corpses. And a raped corpse is subjected to a medicalized, yet pornographic gaze, dismembered into brutalized body parts, descriptions, which are necessarily the substance of a judgment. However, the representation of sexual violence, which mimetically re-enacts the sexual violence, is not displaced in the writing of the judgment.

Words such as sexual intercourse, unnatural sex or insertion of fingers/rods do not communicate the experience of violence from the woman’s point of view. Justification for law’s violence rests on mimetic re-enactments of rape in language during the trial. What this judgment cannot do, and does not wish to do, is to displace the pornography of the rape trial: after all, for satisfying the conscience collective, the law must do violence to the victim of rape, even in her death, to pronounce the death penalty.

Retribution, after all rests on mobilizing affect that the pornography of violence generates.

This judgment does not inaugurate radical discontinuities in judicial representation of sexual violence. Nor does it inaugurate new ways of thinking of sexual violence as liable to tort, as the failure to ensure women’s safety in public spaces and on public transport. Although the court frames this trial as exceptional, the outcome remains unexceptional.

Retributive violence is unexceptional since it does not threaten male social order. Rather it restores male social order, by regulating excessive violence, while normalizing routine sexual violence.

While the demand to scrap the two-finger test is not perceived as dramatic and spectacular as the demand to institute death penalty for rape, the former is far more threatening to a phallocentric law, than the latter. Is it small wonder that radical reforms that could potentially revise the patriarchal foundations of the law have met with little success?

Fear is retribution’s rhetoric, and violence is law’s justification. Justice for women however must be found in radically challenging the violence of law that demands that women pay a cost to prove rape for law to activate retributive violence. But it is not spectacular to protest against law’s violence towards rape survivors, which they endure in fatal doses with each encounter with the law.

Every conviction produces a re-traumatized rape survivor, far more broken by law’s indignity. If some of the time spent outside the Saket courts demanding capital punishment in this case was spent surveying how everyday rape trials are conducted in our courts, the conscience collective would perhaps only demand that dignity to the rape survivor be the cornerstone of every rape trial, irrespective of the outcome.

The writer is Assistant Professor, Centre for the Study of Law and Governance,   JNU