December 2, 2002


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Praful Bidwai

The iron in our souls

No recent incident of sexual assault has shocked the Indian public's conscience as powerfully as the November 15 rape of a medical student in Delhi.

The episode has figured prominently in Parliament, as well as in the media. The media has done some commendable work in highlighting the larger issues of sexual harassment and the growing insecurity which women experience in every Indian city, town and village.

The debate has also brought to limelight the insensitivity and callousness of the police towards gender issues and the urgent need to reform rape-related and sexual harassment laws. All this should provoke some deep reflection-and some long-overdue legislative action.

However, a rather shrill note has crept into the otherwise welcome discussion, with several women MPs, including Rajya Sabha Deputy Chairperson Najma Heptullah, demanding capital punishment, no less, for rapists. Home Minister L K Advani has now revived his plan, mooted four years ago, to move a criminal law amendment to bring this about. The amendment would have gone through in 1998 had the then law minister Ram Jethmalani not resisted it.

In the past, it is mainly arch-conservatives and ardent Hindutva advocates who used to issue strident calls for the death penalty for rapists so as 'to teach them the lesson of their life.' The sentiment for tighter rape laws has now spread well beyond the adherents of ultra-conservatism. A recent survey by the The Hindustan Times newspaper of 311 Delhi women finds a significant 29 per cent of them want rape to be punished with life imprisonment, 43 per cent with outright castration, and a frightful 71 per cent with death.

One may question the statistical adequacy of the sample and the framing of the survey questionnaire. But it is beyond dispute that growing numbers of people, especially women, are losing confidence in the ability and efficacy of the legal system to punish sexual assault. A clear majority (68 per cent) believe the police aren't doing enough to bring rapists to book.

Such sentiments are a useful antidote to the kind of smugness the police exhibit, as Delhi's police commissioner did when he said terrible as rapes are, 'in a large city, they happen.' Their adherents also implicitly reject the VHP-RSS line, last advocated from Jaipur, that only a conservative dress code can protect women from rape!

However, prescribing capital punishment for rape could be a case of the cure being worse than the disease. To argue this is neither to minimise the seriousness of rape as an offence nor to undervalue the need to improve the rates of conviction for that crime. Rape is indeed a gross violation of a woman's body and an assault on her fundamental right to her own person. But clearly, it is different from, and not quite as vile as, taking her life.

Murder is a horrifying crime, involving the ultimate extinction of human life. It has a terrible finality about it. But even murder should not be punished with death. For nobody, not even the State, has the right to take away what it did not create.

Human life is invaluable, too precious to be snuffed out. Experience shows capital punishment does not deter murder. Miscarriage of justice through the execution of an innocent person causes irreversible harm. That's why the relatively developed countries of the European Union have abolished the death penalty and made abolition a precondition for EU membership. There is a strong movement for scrapping the penalty in the otherwise punishment-obsessed United States.

To demand something so severe as capital punishment for rape is to violate the ethical principle of proportionality, which is accepted even in the conduct of war. A just war or just punishment must not be disproportionate to the severity of the original offence or crime. Many of those who demand capital punishment for rape in fact base their argument not on modern ethics or rationality, but on mystical notions about the 'sacred' nature of a woman's body -- a kind of mother-goddess or sati. 'Desecrating' that 'holy' site is here equated with murder. The same concept operated in the Jhajjar dalit-lynching case, where VHP mahants put the life of a cow higher than a man's.

This is an altogether obnoxious proposition. It especially reeks of hypocrisy when advanced by Hindutva proponents who falsely claim ancient tradition respects women and treats them at par with, if not higher than, men. They even deify Bharat Mata on this foundation.

As a cursory glance at the Manusmriti should convince anyone, this is simply not true. Women in ancient societies were typically treated as less than men, and as objects to be consumed and devoured. They figure as adjuncts of men -- mothers, wives, daughters -- not individuals in their own right, and with agency, or capacity for independent action. India is no exception to this. It remains one of the most gender-unequal, blatantly male-supremacist and patriarchical societies anywhere.

To return to the original issue, what is left of the argument for tougher punishment for rape is no more than the idea of deterrence -- the view that stiff penalties will deter people from committing a crime. Even this is open to doubt. Experience shows tough laws don't deter nearly enough. The Narcotics Act (minimum penalty, 10 years' imprisonment) is a good case in point. So is TADA. Rape, feminists rightly argue, is a 'structural crime' originating in complex social phenomena. Hanging one, two or 10 convicts will not end the crime.

There is also another complication: the acquittal rate will sharply rise as penalties get more extreme; this will also raise pressure on the victim not to report the offence.

The central issue, however, is how to bring rapists to book and how to reduce the rates of acquittal (currently of the order of 75 per cent, but still considerably lower than those for so-called terrorist acts, which exceed 95 per cent). Here, three reforms are of vital importance. First, the definition of sexual intercourse in Section 375 of the Indian Penal Code must be amended to include all forms of penetration, not just penile penetration, as well as forcible intercourse even in cohabitation, that is, marital rape.

Second, the status of the rape victim's statement must be significantly raised within the law on evidence. She need not prove the sexual act lacked her consent -- by, for instance, showing marks of physical resistance or injury. Nor should her antecedents be open to question. That is a nasty way of casting suspicion on her character and discrediting and humiliating her. Scrapping Sec 155(4) of the Evidence Act alone can prevent further insults to the victim and encourage her to report the offence: after all, over 90 per cent of rapists are not strangers, but known to the victim -- very often, her relatives.

Third, as far as possible, women judges should hear rape cases, and as a norm, policewomen should conduct the investigation. This would reduce the victim's trauma and encourage her to say what she would otherwise not say in a male-dominated courtroom. Procedures should be changed so the victim can record her testimony in the judge's chamber, without having to appear in a full courtroom. Similarly, counselling should be made mandatory.

These measures must be supplemented by gender-sensitisation programmes for the police and for critical groups like teachers. The police must be made accountable for quickly filing adequate FIRs and for bringing trials to rapid conclusion. Counsellors and women's groups must be involved right from the beginning to encourage the victim to overcome the stigma of rape and report the offence -- in her own interest. Today, going to a police station and facing hostile and wolfish glances or remarks from leering policemen is an extremely unpleasant and soul-killing experience even for self-confident women. This must change.

Such changes are not hard to bring about. They will greatly improve the conditions of investigation and trial for rape, raising the rate of conviction. They have far fewer pitfalls and risks than omnibus, drastic, legal changes that prescribe extreme penalties without addressing the material issues. Such moderate changes are part of the general charter of reform of our police, crime control and justice delivery systems -- themselves an important component of our larger democratic agenda.

However, many people don't seem to believe in systemic reform or even the possibility of reform. They would much rather have harsh, draconian, coercive solutions, maximising the repressive power of the State while disempowering the ordinary citizen. Many ministers, policymakers and senior government officials prefer this option. They are fundamentally mistaken in looking for military shortcuts, technical quick-fixes or draconian laws. This search betrays a deeply cynical mindset, fascinated or smitten by force.

A great deal of human progress has been achieved through democratic engagement with different groups of people and institutions, not brute force. We are in danger of relying excessively on force and coercion for everything -- from security at the border to domestic safety. This is unwise and counterproductive. Ultimately, force-based approaches end up damaging the very cause or entity they are meant to protect and secure.

Praful Bidwai

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