Some instances compel nations to re-evaluate the boundaries of liberty that their citizens must not transgress. In the early Sixties, It was the famous Nanavati trial, and the propensity of the jurors to take too kind a view of the accused, a handsome naval officer who had the media on his side, that brought about a radical change in the judicial system—a farewell to jury trial. So was the Keshavanand Bharati case in the Seventies, leading to an even more radical change as it held most of the rights in the Constitution, including the Fundamental Rights, as non-negotiable by Parliament.
It appears that the Delhi gang rape of December 16, and the public outrage over it, is gathering enough steam to leave its permanent imprint on criminal jurisprudence. This article is about its possible lasting impact on the laws of not only rape but every other serious crime, including those listed in the Indian Penal Code under “offenses affecting human body” (it includes rape). It is worth examining, in this context, if harsher punishment is indeed a deterrent to rape, as civil society seems to think.
The punishment at present, under Section 376 of IPC, varies from seven to ten years of imprisonment, either simple or rigorous, depending on the seriousness of the crime. The section has provisions not clearly defined, under which the court, “for adequate and special reasons to be mentioned in the judgment”, can impose a prison sentence for a term of less than seven years. On the other hand, for rape proved in certain specific circumstances, such as “gang rape”, the imprisonment may be for life.
So, if penalty alone could be the deterrent, the maximum punishment possible in the IPC would have been quite adequate to curb it. But it hasn’t. Since 2005, reported rape cases have increased at an average rate of 3.5 per cent annually despite a proportionate increase in the number of convictions. Mere introduction of capital punishment is unlikely to deter the rapist as it is well known now how hesitant the judiciary and the executive have become to actually sending convicts to the gallows. Besides, the possibility of capital punishment may motivate the rapist to cause more mayhem, including actual killing of the victim, just as murders multiply in numbers out of the perpetrator’s anxiety to eliminate witnesses. The state is praying for capital punishment for the Delhi gang rape accused because it led to the death of the hapless 23-year-old victim. Even if the victim had survived, the criminals would certainly have been given life imprisonment. But that holds no guarantee that the offense will be fewer in number, because the thought of punishment may deter a calculated crime like kidnap and murder but not rape, which is generally unpremeditated.
The crux of the problem is neither so-called inadequacy of punishment of rape nor the supposedly low low conviction rate. National Crime Records Bureau statistics show the conviction rate as 26.4 per cent. At any rate, it is better than that of an advanced country like the US where only 16 per cent of the reported rape cases lead to conviction. In the UK, it is even worse; in 2008, only 5.7 per cent of the cases that the police had recorded saw the accused being sent to prison. Reasons may differ from country to country. The problem with India is that rape goes generally unreported. If the US had witnessed as many as 191,670 instances of rape and sexual assault, it is enigmatic how India, a country four times its size, with a large chunk of its population still having a feudal mindset, could report only 15,423 rape cases in 2011! What is the reason behind such hesitancy in India about the rape victim or her relatives to lodge complaints with police?
I think the hesitation to report rape comes out of the fact that in India it is not so much of a sex crime than a delusion of male power born out of patriarchy. In sexually liberated West, most rape cases are “date rapes” where the couple may get close willingly even though the act of sex, if any, may not be consensual. In India, rape is an exhibition of power. It is more so in villages where women are still regarded as chattel, and those of a lower caste as slave. It shows how ill informed, is Mohan Bhagwat, the RSS chief, who commented that rape is a crime of “India” and not “Bharat”. If he were a little sensible, he’d have realized that rape is a crime of patriarchy that a backward and conservative section of the society condones. In rural India, caste supremacy leads to a sense of ownership of everything belonging to lower castes, including their women, without protest. Dalit women, in particular, must grin and bear. Trouble begins when these high-born nobles are driven to cities due to economic exigencies and join the ranks of low skilled labor, like bus and auto driver and security firms. Devoid of their natural food for lust, they begin to eye the urban women and look for opportunities to molest them, as the six yokels did in Delhi on December 16 evening.
To attack the problem at its origin, there must be basic changes in the orientation of the justice system. No rape victim should be allowed to suffer in silence. Creating a cadre of women police to handle cases of crime against women, setting up special courts modeled on juvenile or family courts, sensitizing Self Help Groups to help rape victims lodge complaint—in short, everything should be done to strike at the root of a medievalist male authoritarianism. Centuries of perverted thinking can only be attacked by a massive deployment of state power.
It is in this context of the urgent necessity to eradicate a warped thinking embedded historically in the minds of a large number of people—maybe the majority—that the Supreme Court should view the petition by lawyer Lily Thomas for a ban on people with criminal record for standing in elections. Though it is for every crime, the December 16 gang rape has given the petition a special poignancy. Of the 552 members of the Lok Sabha, 162 are facing various criminal charges, including two who have been charged with rape. How could even a single person against whom there are prima facie charges of rape be chosen as a party candidate?
