There exist no scales on which the sexual brutality of gangrape, accompanied by extreme physical assault, may be measured. Even so, the recent violence against a young medical student in Delhi still struggling for survival is surely amongst the worst episodes of brazen sexual violence. The spontaneous events of public prayer in all cosmopolitan Indian cities for her survival are simply unprecedented; so is the renewal of critical social solidarity against all forms of sexual violence.
The unfolding events of popular protest reiterate some familiar demands — conscientious police investigation, speedy trials, harsh punishments and efficacious law reform. With the exception of the demand for capital punishment for all rapists, these demands carry universal agreement. What is new is the sense of urgency, cascading public indignation and a wider call for responsive and reflexive law and governance. Translation of the current wave of protests into an enduring social movement entails a serious-minded addressal of flourishing rape cultures in state and civil society, going beyond the practices of exposé politics, the abrasive bravado of leading 24×7 TV anchors, and the opportunistic practices of competitive party politics.
Rape cultures abound in civil society, illustrated cruelly in dowry murders and female foeticide, and the sex-based malnutrition of the girl child. Paedophilia, on all available evidence, is widespread. Visual rape in public spaces is an everyday predation. Conscription into sexual slavery through trafficking of women and girls stands archived in literature and the memories of those affected. Marital rape all too often defines the abjection of married women. Caste/ biradari/ khap panchayats, as well as fatwa cultures, continue to flourish under the patronage of politics. The “shadow” reports by women’s movement groups to the UN CEDAW provide a poignant counter-archive.
Political rape cultures are vividly foregrounded in “counter-insurgency” operations; no reminder beyond a recall of Manorama’s epic struggles should be necessary. The practices of insurgent, armed opposition groups fare no better. Further, degenerate forms of doing competitive “liberal politics” continue even today, seeking to “justify” unnameable violence against women in situations of regime-sponsored or tolerated “communal” and “ethnic” violence.
I have named such cultures “democidal” in at least two ways: these deal mortal blows to the spirit of women as peoples and citizens, and pave ways for explosive forms of public distrust in representational democracy. “Arresting” these is an uphill task, never fully addressed by demands for specific and sectoral changes of law, policy and administration; rather, we need to devise more sustainable forms of social action that aim to feminise sovereign power.
The growing demand for capital punishment ill-serves the very cause it seems to espouse, especially if it were extended to gruesome violence routinely afflicted in the prevalent societal rape cultures. Popularising justice as revenge obliterates citizen memory of a global consensus against capital punishment, and especially India’s specific international human rights treaty obligations towards its “progressive elimination”. Available studies worldwide show that capital punishment does not deter, in the median or long term, “crimes of passion” or, indeed, insurgency-based political crimes. And frenzied advocacy of capital punishment for rapists overlooks the fine balancing trick so superbly achieved by the Supreme Court via its test of the rarest of rare cases. This test already extends to heinous rape crimes resulting in the death of the victim.
A disturbing portent is the spectacle of leading 24×7 TV anchors who flay, to the point of ostracism, human rights-based opposition to capital punishment. Trashing in full public view abolitionist human rights activists as anti-women voices does not furnish the best moves ahead.
The loud talk about the convening of a special session of Parliament signifies no more than a ritual of symbolic politics and may, in the short run, pacify the protesters; yet, it is unlikely that the special session will escape disruption, especially triggered over the passage in the Lok Sabha of the constitutional amendment providing reservation for the promotion of SCs/STs in public services.
Instead, this demand needs conversion into a requirement that Parliament, and state legislatures, set aside a few working days in each session to debate and monitor measures assuring the collective and individual rights of human security for the girl child and all women.
For the moment, no more than a wise use of powers to proclaim an ordinance is required as demonstrative of political will. Such a measure ought at least to achieve the following.
First, it should provide for fast-tracking of all pending rape trials. Second, life imprisonment with rigorous labour, and without parole or remission, should be the norm for rapists. Third, new offences must be declared for law enforcement officials who decline, delay, or doctor FIRs, and for public prosecutors who fail to perform their statutory duties with alacrity. Fourth, the right to immediate and long-run compensation, rehabilitation and restitution for violated women, their kin and survivors, and efficient legal aid and witness protection programmes should be legislated. Fifth, rape as a “crime against humanity” should now be proclaimed on the lines of the elements of crime defined in the statute of the International Criminal Court. Sixth, stringent offences against global sex tourism in India should be proclaimed.
Such measures will provide a roadmap for parliamentary consideration and public discussion; given Article 123’s requirement of parliamentary approval within six weeks of the reassembly of Parliament, any further changes must remain time-bound.
An electoral law reform prohibiting the nomination of candidates against whom criminal charges have been judicially framed for rape or other acts of sex-based aggression remains imperative. The argument of “innocent until proved guilty” is impertinent here, because Article 51 A of the Constitution, which prescribes the fundamental duties of citizens, includes the duty to “renounce practices derogatory to the dignity of women”. How may any constitutionally sincere citizen take an oath to uphold the Constitution when judicially implicated for prima facie violation of his fundamental duty towards women? In any event, this measure will make a significant dent in Indian rape cultures.
More measures are needed. Explicit Constitution-based guidelines should stipulate obligations regulating executive discretion in matters such as clemency, parole and outright amnesty for sex-offenders. The presiding officers of Parliament and state legislatures need to reframe legislative rules of business that enable the prioritisation of legislative consideration of violent crimes against women. Further, appointment of judges at district levels and their elevation to high courts and the Supreme Court should take full account of their judicial performance, including utterances from the bench, that betray a lack of sensitivity and sensibility towards women’s rights as human rights. This requirement should extend to elevation from the bar to the bench.
Even granting that Right to Information Act-type disclosures about judicial appointments may not best subserve public interest, apex justices still need to assure the wounded citizenry that their collegiate practices actually avoid elevations violative of Article 51 A.
The four law teachers who dared write an open letter to the Chief Justice of India in the 1970s concerning the Mathura verdict, initiated some enduring gains of law reform via reasoned public debate, even without the mixed blessing of 24×7 instant mobilisation of mass opinion. Their message still holds — combating political rape cultures invites Herculean labours directed towards the reformation of state rationality and the institutions that sustain it. Further, the theatres of mass public protest need also to engage, with equal determination, the notion that a violation of women’s rights is a violation of human rights in the prevalent societal rape cultures.
The writer is emeritus professor of law at the University of Warwick, UK