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Justice or Revenge in ‘Nirbhaya’ Verdict?

Anand Teltumbde (tanandraj@gmail.com) is a writer and civil rights activist with the Committee for Protection of Democratic Rights, Mumbai.

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When the Supreme Court confirmed the death sentence to four convicts in the 16 December 2012 gang rape and murder of Jyoti Singh, also known as the Nirbhaya case, the entire visitors’ gallery burst into joyous applause in Court. It was consistent with the unprecedented outrage and indignation that the rape and brutal assault on Jyoti Singh, a 23-year-old physiotherapy intern, had provoked across the country. It might have been a rare occasion for the Court to experience such a popular approbation, which reverberated across the length and breadth of the country. The popular sentiment expressed satisfaction that justice had been done, but had it really? Awarding the barbaric punishment of death for the crime of rape and murder is rooted in a similar culture, and qualifies as revenge, not justice. Instead of establishing how the case was the “rarest of rare” by carefully weighing the aggravating and mitigating factors, the Court invoked the phrase “collective conscience” (read, mob mentality) to justify it. There was no consideration of the mitigating factors in the case in terms of convicts’ age, socio-economic background, the possibility of reform, or any such aspect. There was little to no mention of the failures of the police who are responsible for such crimes to a large extent, nor any query about preventive steps. Justice should be necessarily concerned with these issues.

Rarest of the Rare

There is no doubt that the crime against the woman was abominable. The six culprits not only sexually assaulted her but, as reported by the media, inserted a metal rod into her genitals and pulled out her entrails. Any civilised society would react as it did. However, had this society demonstrated similar sensitivity to at least a few of the numerous cases of brutal rapes and murders before, it would have been an absolutely commendable act. After all, it was not the first crime of this kind. But the electronic media, in its zeal for television rating points (TRPs), handpicked and developed the case as an instance of unprecedented brutality. The nomenclature “Nirbhaya” too was its own innovation as was the metal rod theory, which was uncritically accepted by the courts, from the lower to Supreme Court, to make it out to be the rarest of rare cases. As a matter of fact, the word “iron rod” appears in 104 places in the 400-page judgment, indicating the decisive role it played in the Court upholding the convicts’ death sentence. As a matter of fact, the post-mortem report prepared by the Singapore hospital (where the victim received treatment) had confirmed that her uterus and ovaries were intact. It directly contradicted the rod theory because a rod could not reach the intestine without breaking the uterus.

How then could the media manage to create mass hysteria over the incident? The answer perhaps lies in the media leak that at least one of the rapists of the middle-class girl belonged to the Dalit community. Although mentioned in hush-hush tones, it proved the crucial ingredient to ignite middle-class ire into massive rallies and candle marches all over the country. It took the form of a tsunami of protests with other classes too joining in. There have been many comparable cases before and after Jyoti Singh. However, no other case has evoked similar outrage or would so much as ring a bell with the class that came out in protest for Jyoti Singh.

In 2006, in a heart-rending incident at Khairlanji, a Dalit mother along with her 19-year-old daughter was brutally raped and tortured to death before her two sons, who were also lynched to death by a village mob. Their naked bodies were recovered with sticks inserted in their genitals. But it failed to even create a ripple among non-Dalits. When Dalits spontaneously raked it up, they were brutally battered by the police, who labelled them Naxalites following the insinuation of the then home minister of Maharashtra. But even that failed to move this class. On the contrary, they attempted to trivialise it by touting it as an unfortunate incident that happened because of the impertinence of the woman provoking moral outrage among innocent villagers. However, Khairlanji was not the first or the last such crime against Dalit women. Countless cases of atrocities against Dalits had occurred before Khairlanji and continue at an accelerated pace thereafter (Teltumbde 2008). At present, six Dalit women are raped every day and mostly with inhumane brutality. But neither do these cases evoke any response from the society at large nor do they outrage the consciousness of judges to merit the treatment of the rarest of rare. Perhaps Dalit rapes are a normalcy for them!

A Deviant Normalcy

Rape itself is a deviant normalcy in Indian society. In India, women’s bodies are cultural sites of retribution to settle sociopolitical scores. The infinite fragmentation and hierarchisation of society made such contentions potentially pervasive and correspondingly, the assaults on women’s bodies. Female bodies become the primary target in any communal or national conflict. During partition, more than 1,00,000 women were abducted and raped on both sides. They were not just sexually violated but brutalised in an attempt to signify the victory of the aggressors. Many women had their breasts chopped off; others suffered abuse and torture of their genitals—in most cases leading to death (Das 1997: 59). Even in the 1984 Sikh massacre, women in general were abducted and raped. In Gujarat 2002, Muslim women and girls were brutally raped in public and killed before burning their bodies. Many suffered the most bestial forms of sexual violence—including rape, gang rape, mass rape, stripping, insertion of objects into their bodies and molestation (HRW 2002). Women’s bodies, as political sites, serve to display nationalism and power. Each woman raped by the opponent becomes an object of conquest. Thus, the nation state becomes a “Bharat Mata,” a woman that needs to be protected from the outside enemy.

The normalcy of rape is embedded in caste culture in which dominant castes assume control over the bodies of lower caste women. In the not-so-distant past, there were customs that mandated newly-wed lower caste women to be sent to the Brahmins on the wedding night to consummate their marriage. It was prevalent until the dawn of the last century in Kerala, but existed variously in other parts of feudal India too. Incidentally, the ideologues of the Sangh Parivar have proudly justified the custom as the scientific method of improving the breed of non-Brahmins (Golwalkar 1961: 5). This custom is eclipsed by the spread of capitalist modernity but the rapes of Dalits and Adivasis are not. They continue to occur in large numbers and still appear to be part of the life-world of Indians.

The Indian cultural psyche views women as the property of men, to be protected from others. In corollary, rape is an inherent and unavoidable sexualised event. The idea of a woman as pure, pious and submissive is symptomatic of the trivialisation of the rape culture. Dominant notions that women must be subservient to men, sexual desires are male prerogative, rape is a transgression of property (while women will be blamed for arousing men), and social stigma ascribed to the victims of rape and their families, have conditioned even the institutional (police and judiciary) attitude towards rape. Unfortunately, these are internalised by women themselves. Their segregation in social arenas (for example, reserved coaches, seats in public transport), often demanded by women themselves, contributes to the trivialisation and normalisation of rape culture.

Death as Remedy

The popular obsession for the death penalty is also informed by the Indian culture of revenge against one’s enemy, the idea of justice being caste-relative. The empirical data shows that a vast majority of the death penalty victims/convicts were Dalits, Adivasis and minorities. The death penalty correlates with the socio-economic background of the subject (Lal 2016). The Bara massacre of 34 upper-caste Bhumihars by the lower castes in 1992 in retaliation to the killing of 10 Dalits in the neighbouring Maine and Barsimha villages on 23 December 1991 by the private army of Bhumihar landlords, Swarna Liberation Front (SLF), swiftly ended in death penalty (recently commuted to life imprisonment by the President) for the four convicts, three of whom are Dalits. However, the upper-caste murderers behind the several dozens of massacres in Bihar get summary acquittals in a series of cut and paste judgments by the Patna High Court (Teltumbde 2014).Civil rights organisations have been pleading for the abolition of the death penalty as it does not serve any punitive purpose, least of all as a deterrent against crime. International data indicates that countries that have abolished the death penalty possess much lower crime rates than those having death penalty (Bonner and Fessenden 2000).

It may be revealing to note that rape cases in Delhi itself have tripled between 2012 and 2016 in the aftermath of Jyoti Singh (Chachra 2016). The National Crime Records Bureau (NCRB) statistics also reveals an unabated rise in rape cases. The total rape cases reported had increased by 2.9% from 24,206 in 2011 to 24,923 in 2012. But thereafter, it shows a whopping rise of 35.24% to 33,707 rape cases in 2013, and another 8.98% to 36,735 cases in 2014. After the Supreme Court’s confirmation, there were three rapes that were reported in the media within four days, one of them at Rohtak being far more brutal than even Jyoti Singh’s. The multidimensional crisis unleashed by the free-market ethos associated with the uncertainty of life opportunities for the youth leads to alienation and frustration which appears to precipitate into rapes.

The remedy lies in uniform application of the rule of law. The Jyoti Singh case is a classic example of the media pandering to the instincts of people to serve their commercial interests, and the government (and judiciary) falling in line, eventually letting the country regress into a dark abyss of medievalism.

References

Bonner, Raymond and Ford Fessenden (2000): “States with No Death Penalty Share Lower Homicide Rates,” Death Penalty Information Center, 22 September, https://deathpenaltyinfo.org/node/657.

Chachra, Manisha (2016): “Four Years after Nirbhaya, Rapes in Delhi Have Tripled,” Quint, 12 August, https://www.thequint.com/women/2016/08/12/four-years-after-nirbhaya-are-women-safer-in-delhi-not-really.

Das, Veena (1997): Critical Events: An Anthropological Perspective on Contemporary India, New Delhi: Oxford India Paperbacks.

Golwalkar, M S (1961): “Students Are Not the Pillars of the Nation: They Are Its Servants,” Organiser, 2 January, pp 5–6.

HRW (2002): “‘We Have No Orders to Save You’: State Participation and Complicity in Communal Violence in Gujarat,” Human Rights Watch, Vol 14, No 3(C), https://www.hrw.org/reports/2002/india/India0402-03.htm#P384_67492.

Lal, Amrith (2016): “Most on Death Row Are Poor, from Backward Caste Groups, Minorities: Law University Report,” Indian Express, 7 May, http://indianexpress.com/article/india/india-news-india/most-on-death-row-poor-from-backward-caste-groups-minorities-law-univ-report-2788355/.

Teltumbde, Anand (2008): Khairlanji: A Strange and Bitter Crop, New Delhi: Navayana.

— (2014): “Of Caste Massacre and Judicial Impunity: Bloodstains in Bathani Tola and Laxmanpur Bathe,” CounterCurrents, 5 March, http://www.countercurrents.org/teltumbde050314.htm.

Updated On : 2nd Jun, 2017

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