The latest spurt in crime is focussed on rape, brutal rape, brutal gang-rape. Women who resist rape and fight back are brutally mauled after being raped. In the December 16, 2012, Delhi bus gang-rape case (referred to as the “Damini case” hereinafter), one of the rapists allegedly tore out the young woman’s uterus with his bare hand. It would be insulting beasts to call these acts bestial. Men who commit rape are morally and socially at the depths of depravity and viciousness, the lowest of the low, and deserve the most widely publicized, stringent punishment when convicted following due legal process, to provide justice to the victim and to society.
Due Process and the Justice System
Due process should specifically exclude avoidable adjournment delays implicit in the justice system. After the demonstrations following the Damini case, the Supreme Court has directed all Sessions Courts to conduct rape trials on daily basis, stop frivolous adjournments and complete the process within two months. This, of course, indicates the deplorable state of affairs hitherto.
Other problems within the justice system include influencing the prosecution case to make it weak by intent or deliberately shoddy or motivated investigation, or misogynist judges humiliating the rape victim or permitting humiliation by insensitive questioning, or making light of the crime or the sentence, because of hidden caste-based sympathy for the men accused of rape. In the 1992 case of Rajasthani “lower caste” anganwadi worker Bhanwari Devi, whose staunch opposition to child marriage prompted her “punishment” by gang-rape by “upper caste” men, the District Sessions Judge hearing the case stated in court that upper caste men could not have raped a Dalit woman. And more recently, the misogynist mindset of a judge of the Karnataka High Court was revealed in reports of Bangalore Mirror of August 10 and 21, 2012. ((According to media reports on August 31, 2012, in a divorce matter, Justice Bhaktavatsala of the High Court of Karnataka stated to a woman litigant, “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But Madam (Justice BS Indrakala) has”.
The Court asked the woman if her parents were present, at which her father walked up to the bench. The judge was reported to have remarked in open court, “Ask your father if he has never beaten your mother!” When the woman said her husband would beat her in the open, in front of everyone, Justice Bhaktavatsala remarked that it was she who was bringing it out in the open. The court was told that the husband would beat her in the middle of the night and had thrown her out of the house.
When the woman’s advocate produced photographs showing her swollen face after the beatings, the court said, “You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?” The court directed the couple to go out and talk to each other. (Bangalore Mirror, August 31, 2012).
In another case, a young female advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, “Are you married?” When she replied in the negative, the judge said, “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner, not a stranger. Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases”. (Bangalore Mirror, August 10, 2012)
Further quoting from a judgment of Justice Bhaktavatsala: “In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. Since the Hindu Marriage Act does not deal with love marriages, in our view, it is a high time that the Parliament shall take note of the sufferings and turmoil of such girls and their parents and amend the law suitably. We perpetuate our memory as to the episode of the famous Telugu Cine actor Sri Chiranjivi’s daughter’s love marriage. Hence, we suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable.”)) One can imagine how a rape case would proceed in a court of such judges. In the 1996 Priyadarshini Mattoo rape-cum-murder, the trial court judge acquitted the influential rapist giving him the “benefit of the doubt”, but the High Court overturned the acquittal and he was held guilty and sentenced to death, later commuted to life imprisonment. The Jessica Lal murder also saw acquittal at the trial stage because the accused was influential.
In rape cases, every day spent in investigation and hearings in courts is yet another day of continuing humiliation and agony for the victim over and above that already suffered. Prosecution witnesses turning hostile due to influence of the accused, public prosecutors being influenced or being misogynist, adjournments being freely granted by the court, benefit of the doubt being given to the accused, questioning the morals of the victim (noting that marital rape and child rape by a male relative do happen), deliberately humiliating questions to the victim regarding the act of rape, etc., are not uncommon. All these effectively heap further injustice on the victim of rape, adding to the social pressures already on her head because she is a victim of rape.
Far from being a refuge from scoundrels, for women in general (and also for most men) and especially for illiterate or poor people, a police station is a place to be feared and avoided. Often enough, police personnel are themselves involved in raping women in custody. Soni Sori, a tribal teacher of Chhattisgarh accused of being a Maoist, was tortured for over a year while in police custody and besides being regularly stripped naked and subjected to devilish tortures, was raped by insertion of stones into her vagina and rectum. (Rape is not only penile penetration).
Seema Sengupta, in her story, “India’s human rights record makes a farce of its democracy” in The Guardian of 22 July 2011, writes: “…The Asian Centre for Human Rights has documented a jump in cases of custodial deaths by 41.66% over the last decade, including 70.72% in prison and 12.60% in police custody”. Rape (of both male and female prisoners) is sometimes a part of the torture that results in custodial deaths.
It is well-known that it is difficult to get police to register a FIR for any kind of crime; in rape cases, it is perhaps more difficult. Police are not merely people-unfriendly, but even anti-people, and apt to refuse to register a rape FIR or deliberately delay it, because of misogyny or expectation of bribe, or because of the caste of the alleged rapist or the victim. Glaringly demonstrated in Bihar from the caste-wise living segregation of police personnel, caste is a big dividing factor among police personnel, and registration of FIR, especially of rape crime, is heavily caste-loaded in all states of the Indian union. Implementing police reforms will go a long way in changing the police force from being VIP-oriented to people-friendly.
Equality for Women
Article 13 of the Constitution of India mandates that “laws inconsistent with or in derogation of the fundamental rights”, are void. Article 13(3)(a) amplifies that “’law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. Therefore any custom or usage (as, for example, with khap panchayats) that infringes on fundamental rights is void. Further, Article 14 secures the right to equality before law and, recognizing the special vulnerability of women and children, Article 15(3) allows the State to make special provision for women and children. Thus, while the male and the female are different physically and emotionally, with the female being more vulnerable than the male, male and female are equal in the eyes of the law, with equal rights. But gender equality is not practised, not even felt, culturally or socially.
The Damini case has triggered a nation-wide demand for security for women in India’s male-dominated society. The demand is for governments and government agencies to provide this much-needed security and ensure exemplary punishment for rapists. However, apart from some individuals focussing on the crying need for genuine respect for the female psyche and the female body at the individual, family and wider social levels, it has been conspicuously absent in the public demonstrations and demands. In our patriarchal society, respect for females is not a priority, and while social workers demand rights for women, few have consciously worked at enhancing women’s self-respect. Worse, society perpetuates inequality between male and female in favour of the male. For example, it is common knowledge that girl children in many communities are fed and schooled less than the boy and made to work harder than the boy, and advertisements targeted at the socio-economically higher classes encourage parents to save money for their son’s education and for their daughter’s marriage.
Violation of Women’s Rights And Security
It is well to understand the effect of rape on a surviving victim’s psyche. Even without social stigma which is almost always heaped on the victim, the act of rape does not merely violate the victim’s body. Especially if the victim is a minor, the act of rape (even molestation) leaves a life-long mental scar that renews the trauma even when a male simply casts a glance towards the victim. In other words, rape causes a child or woman life-long, serious damage. Though an acid attack on a girl is not rape in the legal sense, it is violation of the girl’s psyche in addition to the physical pain and life-long serious disfigurement, and amounts to rape. Thus, while rape and rape-cum-murder are extremes of violation of women, acid attack and dowry harassment, which are violations of the female psyche, should be treated on par with rape.
The violence of sexual rape and the physical abuse preceding and following it is the outcome of the rapists’ depraved need for expressing domination and control on a soft target like a child, girl or woman. Rape is about power, violence, intimidation and humiliation1 and is a manifestation of patriarchy.2 Rape happens mainly in three places: homes, public spaces, and public offices, and happens in the home as often as in public spaces and in public offices. Sometimes rape is even ordered by officials, as a method of humiliation and torture for “intelligence” purposes, and even men are victims. The Abu Ghraib prison in Iraq under US occupation has been exposed in this respect, but it is practice in most countries including India, although perhaps not at the scale of Abu Ghraib. Wherever rape happens and whatever the context, rapists are essentially mentally and emotionally warped persons.
Shades of Class
The Damini case, while being the most recent extremely vicious one, is matched in viciousness and ferocity by other earlier rape cases. During the 2002 Gujarat pogrom, a member of a rampaging mob cut open a pregnant woman’s abdomen to pluck out the unborn child and then burn both mother and fetus on a fire. During the 1984 anti-Sikh riots in Delhi and elsewhere, Sikh women were raped and murdered in broad daylight by rampaging mobs. In 1973, a Bombay hospital nurse, Aruna Shanbhag was raped (sodomized) and strangulated; she continues to survive in a permanent vegetative state. Women of the (Dalit) Bhotmange family in Khairlanji (Bhandara, Maharashtra) were raped and murdered in 2006 by “upper caste” men. Personnel of central and state police and the army have been accused of vicious torture and rape of women held in custody on suspicion of being associated with militant organizations, both in the northeast states and Kashmir, and more recently also in Chhattisgarh and Jharkhand. Indeed in the huge majority of rape cases, whether or not followed by murder, the victim is from a lower socio-economic or vulnerable group.
The difference in the Damini case is not only in its ferocity and utter depravity but also that the victim was (apparently) from the socio-economic middle class. None of the rape crimes narrated above saw the huge protest turnout of youth that the Damini case has seen. It is not unlike the wide media coverage and huge protest turnout of youth in the Jessica Lal murder, prompted by the fact that the victim was from the socio-economic middle class. The public and media outcry in the Priyadarshini Mattoo rape-cum-murder was similar.
Thus, while there has been justifiable anger against government or government agencies in the Damini or Priyadarshini Mattoo or Jessica Lal cases, it is difficult not to notice a certain class element in public and media reactions, which were muted or even absent for victims from obscure or Dalit or Adivasi or lower socio-economic backgrounds. Even when rape is “ordered” by a khap panchayat little happens at a public scale. This, of course, is quite apart from the hundreds of rape or molestation cases that never reach public notice because of one or more of several reasons including police refusal to record FIR or the rapist being a family member, etc.
There have been demands for the death penalty (requiring an amendment of extant law) for brutal rapes, but it is questionable whether the death penalty would be a deterrent to potential rapists, noting that there is nationally and internationally growing opposition to the death penalty in general. It has been shown in an article titled “Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates”, that in USA, according to FBI’s “Crime in the United States”, the murder rates in the 20-year period 1990 to 2010, are less in states that have no death penalty.
The Indian situation is doubtless different from that of USA and murder is not the same as rape (though it can follow rape as in the Damini case), but the relevance of this statistical study concerning the death sentence cannot be neglected. Apart from jail terms, alternative penalties being suggested are chemical castration which is reversible by stopping administration of the drug, and surgical castration which is irreversible. It has been argued that the certainty of detection/cognisance of crime and certainty of punishment can be a greater deterrent to commission of crime than having the death sentence on the statute.
Even with the ongoing wide print and electronic media coverage to the Damini rape-murder case, reports are coming in of rape and molestation instances. The present ambiance of rapists getting away easily, victims being stigmatized by society, and very low conviction rates only encourages violation of women’s security and their rights. The death penalty for rape crimes may or may not be fit punishment for the convicted person depending upon the facts and circumstances of the case, but there is growing understanding that the death penalty cannot serve as an effective deterrent to crimes of rape, acid attack and dowry-related deaths. For crimes of rape and rape-cum-murder, the certainty of arrest without bail, rapid and fair legal process and stringent punishment (which, in this author’s opinion must include irreversible surgical castration, wide publicity, and long periods of prison), is far more likely to deter would-be rapists and violators of women’s bodies, rights and security.
Beyond the Reactive
The incidence of rape (and other serious crimes) is proportional to the violence-proneness of society. A society that is ill-governed, with widespread economic violence is sure to have high incidence of serious crime, including rape. Ill-governance, a general term denoting some combination of non-governance, mis-governance and mal-governance, stems from a lack of leadership, unwillingness to face up to situations, and lack of moral courage at the top levels of state and central governments, legislatures and judiciary.
Discussion has mostly been about what should be done after commission of a rape crime. Prevention of rape by women using heightened vigilance, unarmed combat techniques, pepper spray, carrying weapons, etc., may be possible, but it calls for presence of mind and a certain aggressive spirit that many women may not be able to muster in time or at all. This is essentially reactive to a perceived threat, and can keep women, especially those who travel alone or work late, in a state of constant stress, violating their right to security and health. Thus, what is agitating the minds of many is what can be proactively done to prevent rape crimes through social reform and child (school) and adult education, so that members of the male population in our heavily male-dominated communities have respect as equals for females in the family and in larger society.
• Reposted from Brave New World website.
- Anup Surendranath; “Castration is not the right legal response”; The Hindu, December 24, 2012. [↩]
- Medha Patkar; “Rape is a manifestation of patriarchy”; The Hindu, December 24, 2012. [↩]