Rape as a Crime versus Rape as a Punishment: What is going on in India?

Written By Garima Tiwari

Indian village council orders sisters to be raped and paraded naked after their brother elopes with married woman.[i]

This recent news and few other similar incidents evoke a number of sentiments. Of course, it is an illegal order with no statutory backing, yet it is an order of the “members of the society” or as are called “Kangaroo Courts” . And it raises pertinent issues about the perception of women in India within a complex web of Caste, Culture, Religion and a family –community system still very patriarchal. While the Nirbhaya Delhi Gang rape case is still sore and the Government’s “security regime” -in place, headlines of “sentencing to rape”, create a mismatch in legal and societal standards. This post loosely  puts forth ideas on how the simple formula of merely punishing the offender does not even look like a step forward in acknowledging the deep seated problem in a complex society like India.

The Delhi Rape Case was not the first rape case of such brutality in India, but it definitely is the case which seemed to have laid the issue on the table aggressively, in a way demanding immediate action. It is a clear example of how a security driven approach of state control in areas which have wider repercussions and impacts from socio-cultural and personal fields cannot be dealt with in a way governments deal with trade or foreign policy. [ii]The response was the Verma Committee which suggested amendments to the existing criminal law. [iii] The resulting law [iv] enacted again merely focussed on a strengthened security regime plus it imposed death penalty, which as is evident has led to severe criticism of India on international level. Marital rape is still out of the purview. Instead of modifying the exiting gender roles it merely made the categorisation of male-female more evident. One must also note that the voice of the nation here was the youth of cities like Delhi, Mumbai etc. In smaller towns and villages and in family structures the women were still blamed for the mis-happenings. One can clearly see this view, in the BBC documentary called India’s Daughter where the wife of the accused, was unable to comprehend how wrong the accused was.

The idea of conviction to imprisonment or death, particularly in this case, was hailed as an example which will create a deterrent effect. But the news of rape each day is definitely telling a contrary story. Despite being on the death row, Delhi gang rape convict, Mukesh Singh, told a British filmmaker that his victim invited the rape because she was out too late at night and that she would have lived if she had submitted to the assault.[v]

Indian view on international law can largely be in seen in how the policies, courts and the publicists elaborate on it. Largely areas like foreign policy, trade, etc do not evoke extreme or wider sentiments and the authorities are able to carry out their work without much public debate. But when it comes to issues of nationalism and personal space like terrorism, war, religion, family or gender, public has raised its voice and showed what it believes in. Thus, unlike the usual top down approach of government ordering-people accepting (yes sure, there is public consultation), there are issues which demand changes from a ground-level. India is a pluralist and a dualist legal order with separation of powers and powers divided under three lists. While pluralism can be seen in the Indian State (bureaucracy)[vi], the judiciary has time and again incorporated principles and norms of international law and acted in a monist way.[vii] When it comes to women rights, the judiciary has been very active and looked up to international human rights law, CEDAW and other such relevant legal instruments so as to evolve the gender law. It has created national laws like the domestic violence act etc to incorporate these. But where is the “trickle down” effect of these to the members of the society?

I would like to quote the following excerpts from the paper of Ratna Kapur, “GENDER, SOVEREIGNTY AND THE RISE OF A SEXUAL SECURITY REGIME IN INTERNATIONAL LAW AND POSTCOLONIAL INDIA”[viii] (excerpts) “Gender in the context of international criminal law continues to operate as a stable category, yet the function that it performs is to regulate and manage behaviour and conduct while also disciplining such behaviour and conduct.[ix]…. The gender arrangements are both simplified and reaffirmed and a sexual security regime is erected to govern sexual conduct and incarcerate people for ‘bad’ behaviour. This thinking informed the interventions in the Delhi rape case, highlighting how international norms and laws produced as abstract and universal concomitantly construct and rework domestic norms…… The security apparatus that was strengthened in light of the protests was partly propelled by market demands for stability and efficiency and, hence, greater policing.[x] In some ways, the interests of the protestors and the state coincided in the sexual surveillance techniques that were ultimately adopted. This convergence perhaps represents justice for women who are exhausted of being pawed, groped and ogled the minute they enter the public realm, while it also operates as a disciplining technique of modern power and a condition for legibility.[xi] The criminal law, which has been the primary tool of feminists and states engaged with issues of gender in IL, has provided a justification for states to strengthen law enforcement agencies, adopt stringent sentences and strengthen border control as well as to cabin and contain sexual expression in the name of women’s rights and gender justice. However, as discussed, such interventions serve to strengthen social and political control, rather than to empower those who are demanding recognition and action.[xii] …”

Here, in light of the illegal “sentencing to rape” order, I would add and conclude that law has failed miserably to change the existing ideology or cultural mind-set of people living in a society. Individual autonomy versus caste system? Family honour versus safety? In both international as well as in domestic zones of operation, law has not been able to work as an instrument of social change. The seeping down of the positive objectives of law from international to national to local- to alter what is wrong, has not happened in a direct flow. Instead the positives which law seeks to impose, become negligible in a top-down approach as is evident in how the local council “sentenced” to rape. (I don’t see international law, national law and local laws in a hierarchy of superior-inferior.)

Both at national and international levels, law has to interact and engage in a constant, continuous and aggressive dialogue with the socio-cultural rhythm of the smallest unit with which it deals and impacts. The regulatory regimes are merely re-enforcing the gender divides and in my opinion they fail to create any positive right based regime. This does not mean that security apparatus is not needed, but one cannot call it the ultimate solution. It is not an issue that can be solely dealt and fought by the police, lawyers, legislators, feminists, non-governmental groups, or any other institution in isolation. International human rights and international organisations can create norms and rights but the real need is a new method of implementation. It needs a serious study, a plan of action, social revolution based on education and awareness of masses. It has to be done in a language that the common people understand, not in a tone of international legal jargons or feminist aggressive arguments. Law has to join hands with socio-cultural studies, psychology, sociology and other relevant fields to bring a comprehensive solution. Thus, to punish and to prevent seem two different zones when it comes to a crime which is not limited to mere legality but which goes deeper into the very structure and composition of the society and psychology of an individual. True it is not an easy task and will take a long time as there are multiple societies within a society and one can easily see how far apart these maybe: “Rape as a crime” and “Rape as a sentence”.

(Must Read: Kapur, Ratna, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” [2013] MelbJlIntLaw 12 at https://www.law.unimelb.edu.au/files/dmfile/01Kapur-Depaginated.pdf )

[i] Al Jazeera, India Village Council Orders Rape of Two Sisters, 30 August 2015, at http://www.aljazeera.com/news/2015/08/india-village-council-orders-rapes-sisters-150829145847675.html

[ii] Nilanjana Bhowmick, ‘The Real Shame: India’s Patriarchy Roars Back after Delhi Gang Rape’, Time (online), 18 January 2013, http://world.time.com/2013/01/18/the-real-shame-indias-patriarchy-roars-back-after-delhi-gang-rape/

[iii] J S Verma, Leila Seth and Gopal Subramanium, ‘Report of the Committee on Amendments to Criminal Law’ (Government of India Publication, 23 January 2013)

[iv] Criminal Law (Amendment) Act, 2013 (India) Act No 13 of 2013

[v] Man Convicted of Rape in Delhi Blames Victim, March 3, 2015, http://www.nytimes.com/interactive/2015/03/04/world/asia/india-delhi-gang-rape-documentary.html?_r=0

[vi] Jolly Jeorge v. Bank of Cochin, AIR 1980 SC 470 (India)

[vii] Prabhakar Singh, Why Wield Constitutions to Arrest International Law, (2010) 16 Asian Yearbook of International Law, 114

[viii] Kapur, Ratna, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” [2013] MelbJlIntLaw 12 at https://www.law.unimelb.edu.au/files/dmfile/01Kapur-Depaginated.pdf

[ix] Sune Sandbeck, ‘Towards an Understanding of Carceral Feminism as Neoliberal Biopower’ (Paper presented at 2012 Annual Conference of the Canadian Political Science Association, University of Alberta, 13–15 June 2012) 1 .

[x] See generally Todd Gordon, ‘The Political Economy of Law-and-Order Policies: Policing, Class Struggle, and Neoliberal Restructuring’ (2005) 75 Studies in Political Economy 53.

[xi] See generally Andrew Barry, Thomas Osborne and Nikolas Rose (eds), Foucault and Political Reason: Liberalism, Neo-Liberalism and Rationalities of Government (University of Chicago Press, 1996).

[xii] Kapur, Ratna, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” [2013] MelbJlIntLaw 12 at https://www.law.unimelb.edu.au/files/dmfile/01Kapur-Depaginated.pdf


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