Bar and Bench - Indian Legal news
www.barandbench.com
Rape – Time we address the Real Issues
Columns

Rape – Time we address the Real Issues

Bar & Bench

Satvik Varma

In November, there was a brutal gang rape of a Hyderabad veterinarian, followed by her being doused in petrol. Immediately after news came in of a similar occurrence in Buxar district in Bihar, where the victim was shot at point-blank range before being burnt. While the nation was still coming to terms with these horrific tragedies, a rape victim in Unnao was beaten-up and subsequently set ablaze. And then reports trickled in of a minor having been raped for days before being set on fire.

In the midst of all this, with public sentiment seething with anger, the four men accused in the Hyderabad incident had been killed in a ‘police encounter.’ The bloodthirsty reacted with jubilation saying that justice had been served. More rational voices are questioning if we’ve collapsed as a society. There’s a public outcry on all sides against these abhorrent acts for which our criminal justice system and inadequate policing, amongst others, are being blamed. Yes, we need faster trials and harsher punishment. But as Chief Justice of India stated justice can neither be instantaneous or based on revenge. In a country governed by the rule of law, due process must be followed and no one, neither the police nor the victims or their family can take the law in their hands.

Focusing on the multiple cases of rape, these brutal incidents reflect a deep societal malaise which requires a thorough cleansing of our misogynistic culture in a society divided across religious, class, caste and economic lines. To address the problem a change in attitude is required, something which can address the power imbalance in our patriarchal ridden society.

All this may sound familiar as similar discussions took place in 2012 after the Nirbhaya case which shook our collective conscience as a society. There was similar fury and one believed that the men who commit rape must be monsters. That’s what prompted Madhumita Pandey to conduct extensive research where she interviewed several dozen convicted rapists. She concluded that when you talk to the accused, “you realize these are not extraordinary men, they are really ordinary [part of our own society]. What they’ve done is because of upbringing and thought process.” Pandey goes on to note that “a lot of these men don’t realize that what they’ve done is rape. They don’t understand what consent is.”

Pandey’s empirical findings remind one of the recommendations of The Verma Committee constituted after the Nirbhaya case. The Committee was vocal that if “necessary steps are not taken by the State to provide basic amenities and guarantees in line with the Constitutional mandate, the State runs the risk of alienating its own citizens.” The State has clearly failed in its duties. Recently released National Crime Records Bureau data reveals a 6% rise in crimes against women compared to 2016. Rape, by the authorities’ own admission, is one of the fastest-growing crimes in India!

Following the Verma Committee recommendations, various amendments were made to criminal laws including doing away with Courts ability to reduce the punishment in rape cases based on “adequate and special reasons.” In fact, the Supreme Court has warned lower courts from taking a softer view while awarding sentence in heinous crimes, like rape, and highlighted the need for punishment to be proportionate to the crime at hand.

But as social scientists point out, there exists a complex relationship between punishment and sexual violence. Research associates from the “Centre on the Death Penalty” at the National Law University, Delhi, note that “to believe that the death sentence is a solution to violence against women, so deeply embedded in society, is to provide a false sense of security to women. It is also no more than a knee-jerk reaction of the State to a problem that has grown wildly beyond its control; the death sentence, at most, is a consequence not a solution.”

Prabha Kotiswaran, professor of law and social justice goes further to state that “while criminal law focusses primarily on intensified punishment, the law itself can’t be the only solution.” The problem according to Kotiswaran is intensified owing to the fact that penal laws in India “were passed at different times and have different internal structures and logics, and come to a clash when implemented.” In the aftermath of these monstrous acts, the demands for harsher punishment ignores the root cause of the problem.

We’ve all heard too often that rape is not about sex. It’s about power, privilege, control, a misguided sense of superiority and a false sense of entitlement. What else would explain the rising numbers of rape by persons in trusted positions to the victims. What is therefore needed is perception reform. Something to address the structural issues that plague our society which routinely promotes inequalities against women. Let the incidents from Hyderabad, Buxar, Unnao and Tripura act as the final reminder that as a society we need to promote alternate forms of masculine expression. Only when we respect our women and make their safety a priority are we advancing as a nation. Otherwise, even with all the Trillions, we hope to achieve we will still be regressing.

Satvik Varma is a litigation counsel and corporate attorney based in New Delhi. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.