What happened in Hathras is shocking, gut-wrenching and unconscionable to the core. Rape in itself is a heinous and inhuman act, the perversity of the act that followed, which is physical assault including dismembering of body parts showcases to what depths humans, nay devil incarnates, can plumb to. Our collective humanity stands diminished today.
In that respect, there are two distinct strands of thought for us as a society and citizenry to ruminate upon – one where our focus should be and the other where our focus is. I’ll begin with the latter. Without pinpointing any individual here, collectively, as a society, our focus is misdirected; maybe inadvertently or perhaps wantonly. If it is inadvertent, it is high time we wake up and smell the coffee, otherwise we’re dealing with a much graver issue here.
Where our focus is
Our focus, looking at the discourse after each such incident is on 2 things:
- Political blame-game
- Intellectualizing the incident
First of all, rape incidents are somehow and inevitably politicized in this country. Be it Nirbhaya, Hyderabad, Unnao or Hathras, every incident is viewed from the prism of where it took place, under whose ‘regime’ or under whose jurisdiction. Whether this benefits the narrative of the left wing or the right wing? Whether political points can be scored or electoral gains achieved? What sort of sick mentality is this? While that prism cannot be overlooked and is indeed necessary for demanding responsibility from the elected representatives, for checking the lapses in administration and law and order, it should not reduce to a political boxing match.
Secondly, it has to do with the intelligentsia. Every such horrific incident is intellectualized and theories drawn around it. Remember, the pain of the victim or the family will not be ameliorated if you do a subaltern analysis, an analysis on the intersectionality of feminism and prove to them whether it’s a crime of perversion or a caste-related crime. Such debates remain the preserve of the privileged and do not change ground realities. Also, narrow and selective outrage doesn’t help anybody.
The focus, therefore, should not be on academic debates and drawing ‘conclusive’ and often reductive narratives but looking at solutions in a society where such incidents do take place and with such alarming recurrence. A solution- and data-driven analysis is needed, if you may.
Where our focus should be
Frankly, our focus should be on prevention of such heinous crimes from happening and where it does happen, ensuring swift, exemplary and definitive justice for the victim and to provide a closure to the bereaved families. The focal point or the centrality of any such argument is the Criminal Justice System (CJS) which includes the intersection of 4 sub-systems –
- Legislation (Parliament)
- Enforcement (Police)
- Adjudication (Courts)
- Correction (Prison/Remand Centers)
Let’s take a look at all the components beginning with the legislation. Generally, the law has lagged behind and the government of the day has duly faced criticism. Nirbhaya case was a watershed moment not just for our collective conscience but also in criminal jurisprudence in the country. On the recommendation of Justice Verma Committee, changes were brought in to the criminal law. The Criminal Law (Amendment) Act, 2013 (aka Nirbhaya Act) came into effect on April 2, 2013.
It increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state. The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment. As far as caste related crimes are concerned, the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act was beefed up further in its 2018 amendment removing provisions like anticipatory bail. Therefore, more than the legislation the implementation of the statute seems to be the issue.
“Law without justice is a wound without a cure.” – Robert Scott Downey
The implementation of the statute is done by the next pillar, i.e., enforcement. Law and order is a state subject and that is why it differs from state to state. Generally, as per NCRB statistics, the states in the cow belt have had about 70% of the rape cases and it is symbolic of the lackadaisical and often less citizen-friendly and feudal nature of the police force in those states. It does not exonerate the district administration which is equally responsible if not more. It bodes poorly on the policing in such states if such incidents occur with regularity and brazenness. Therefore, that is where our focus should be. Better and citizen-friendly policing; especially one that is more sensitive to crime against women.
In places where caste-related crimes take place, there should be wider caste representation in the police force at the constabulary stage. For instance, wider recruitment of people from the North East in the Delhi Police on the recommendation of Bezbarua Committee. Similarly, more women need to be inducted. FIR registration should be easier, more transparent and systematic so that no one is denied their right. Those seeking protection, especially the lesser privileged should not be discriminated against.
The 2nd ARC (Administrative Reforms Commission) noted how the police forces have been misused by the political executive over time. It is time to limit the authority of political executive by law. But most importantly, to prevent such horrific incidents, there has to be better vigilance and surveillance in crime-prone areas. Community policing should also be encouraged, wherein citizens become the eyes and ears of the police.
“Eternal vigilance is the price of liberty.”
The third pillar is the adjudication where the Constitutional Courts come in. The Supreme Court has played a stellar role filling in legislative void when it comes to upholding human rights as indeed women’s rights, for instance, Shah Bano case and Vishakha guidelines. But then again, these are landmark cases. In today’s time, there are more than 3 crore pending cases in the courts and it is estimated if no fresh case is filed, it’ll take another 360 years for the cases to be dispensed. The Supreme Court itself has more than 60,000 backlog cases.
To deal with such a leviathan, the concept of fast-track courts and special courts came about which are part of various statutes. Still, we don’t see rape cases being dispensed at the speed and the urgency with which the public demands. That’s why there’s a general sense of despondency and people want summary execution of rapists to rid society of all that is evil. While death penalty should indeed be awarded in the most heinous crimes as per the statute, if it does not go through the due process, it’d be a travesty of justice.
“Injustice anywhere is a threat to justice everywhere.” – Martin Luther King Jr.
The certainty of punishment should be primary and then comes the severity of punishment. On the latter aspect, multiple such incidents post Nirbhaya bear testimony to the fact that no amount of punishment has proved to be a deterrence for the next incident from happening. In fact, there have been reported cases of recidivism. That points to the fact that reforms are needed in our correctional facilities.
That takes us to the fourth pillar which consists of the correctional facilities such as jails and remand homes. There is dire need for prison reforms. Death penalty is the recourse in the extreme cases but in other cases of gang rape, the stipulated punishment is 20 years. Our focus should be on the ground reality of prisons and to ensure that it becomes a correctional facility in the truest sense.
To that end, there should be skilling (upskilling and cross-skilling) of the prisoners, they should have vocations, remunerative employment. At the same time, focus should be on their mental and spiritual health. They must have daily sessions of yoga and meditation. Basic educational courses to be provided for those who would’ve missed out on formal education. Basically, the focus should be on ensuring that a better, mature and a more sensible human being comes out of the prison than the one who entered.
It is unimaginable and unfathomable that such beastly incidents can take place in our society but they do. Such depravity and barbarity speaks volumes of degeneration among certain people. It is time for society to look in the mirror and question what kind of values are being imparted to the youth. As PM Modi exhorted, it is time to question the boys instead of girls in families where are they going, who are they hanging out with, what do they do all day long. Ask them about their online activity, enquire about their mental health. Also, structured courses of sex education need to be imparted and self-defense classes in the formative years as part of school curricula.
It is not going to be easy. But it is a reality and a multi-faceted challenge that we have to take head on. It is incumbent upon us to change the system and ensure there are no more Nirbhayas in India and most importantly, justice is neither delayed nor denied.
‘The arc of the moral universe is long, but it bends towards justice.’ – Theodore Parker
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