Written by Aarushi Aggarwal 

‘Beti Bachao’

These two words, that represent a countrywide campaign, have failed. Spearheaded by Prime Minister Modi, Beti Bachao may be painted on the back of every car on the streets and every billboard in the city. Even if so, the catchy phrase has not translated into a reality which remains bleak for every Indian woman. Every thirty minutes, a woman is raped here. By the time today ends, 24 women will have been raped. With such (reported) numbers, what the country needs is not a meagre political tool like Beti Bachao, but a transformative — and I’d go as far as saying revolutionary — instrument to affect and inspire serious change.


Data sourced from NCRB 2016. The numbers represent reported cases of rape for 2015-16 by state/U.T. Hover over and click on an icon, to see the number of reported cases. The all India number was 38,947 

 

The Indian government has fallen short—as it does in many other ways—of taking adequate steps in this direction. Case in point: the Criminal Law (Amendment) Ordinance 2018 which was promulgated on April 21st, 2018. It is a reactionary tool to placate masses that are horrified at the brutal, barbaric and bestial rape and murder of an eight-year-old girl in Kathua in Jammu and Kashmir. In the aftermath of the horrific incident coming to light, the Indian public debated its causes at length. A communal angle, among many others, was also explored. While discussing the sociological aspect of the violence is important—and perhaps necessary too—it takes away from the very occurrence of the incident: the rape. It is easy to be carried away in the fast currents of debates about the power and politics of religion and caste but these debates ought not to undermine the nature of the act; a rape is a rape, regardless of what induces it.

In a rare occurrence, a truism like “a rape is a rape” actually holds weight. Imagine this: on a sunny afternoon, a female is walking down a street so familiar to her that she could close her eyes and yet reach her destination. Suddenly, a group of men—maybe there were just a couple, or perhaps there were three or four, she doesn’t know how many—drive up in a car and stop next to her. They pull her in and drive off to a remote location where nobody can find them. A few hours later, when people go searching for the said female, worried sick that she hadn’t returned home that afternoon, they find her lying face down, dead, in some bush. That she had been raped was evident—no questions asked. Now, what age would one imagine that female to be? Rather, does it matter how old that female is? The heinousness of the crime is not enhanced or marred as the age of female increases.

In all situations, it remains a grave crime, a breach of fundamental rights that undermines the person on whom it is inflicted. It has nothing to do with the victim or the victim’s age. The agency rests entirely with the perpetrator of the crime, and not its victim.

Therefore, the criminality of rape ought not to be derived from the victim but from the crime itself.

It is this very basic aspect of the crime that is neglected in the new ordinance. In the new law, the gradation of punishment awarded to the criminal is derived from the person of the victim. Such a gradation shies away from addressing the crime for what it is and from holding the criminal responsible for their actions. To many, this new law would appear to be a win because finally, the government appears to have taken steps to address the deplorable number of rapes that many connote as India’s “rape culture.” However, this ordinance does not actually address the problem at all. It follows the trajectory of the Prime Minister’s delayed statement on the incident,  “Our daughters would definitely get justice.”

On the surface, this seems to be a reassuring statement from the PM; it upholds the rights of the aggrieved party. Unfortunately, it addresses the problem of rape only from the victim’s perspective. The choice of words is important because it reveals the manner in which such incidents are thought about. With rape, the conversation is always about the victim, their morality and their (robbed) innocence. So much so, that the Delhi High Court issued notices to several other High Courts for disclosing the identity of the victim of the Kathua rape case.

The criminal, their actions and their crime never make the main story.

Given that in a rape, the victim is the party without agency, ought not the case be about the perpetrator? In other words, shouldn’t the Prime Minister have said that the rapists will receive justice?

This criminal ordinance is not very different from the PM’s line of thought. The difference in punishments meted out to rapists of girls below 12, girls between 12 and 16 and women over 16 years of age focuses on the victim rather than the rapist. While this article refrains from listing the problems with the listed punishments themselves, I want to reiterate that in nine out of ten cases, the rapist is known to the victim. Therefore, issuing a death penalty for the rape of minors is likely to be covered up by the family itself, thereby going unreported. A more constructive framework needs to be put in place one that does not only punish the criminal but also deters future crimes.

To that effect, the motives for punishing rapists need to be revised and perhaps reevaluated. Are they to deter future crimes of the same nature or to punish the criminal because they deserve punishment? Is teaching society a lesson more important or punishing the transgression already committed?

A straightforward answer would be that the act of rape should be punishable because of its inherent nature. This retributive stance would imply that the transgressor be punished severely, sought vengeance upon and denounced for their actions. However, a large section of the Indian society does not, as yet, fully understand crimes against women. In the cases of rape, for instance, most Indians hold the women equally accountable for their rape. A case can be made that many people do not really understand what makes rape a crime. It is ‘bad’ because a woman’s morality is abused and her family dishonoured but most people do not see rape in light of an abuse of the rights of another person. Given this situation, a retributive punishment like the death penalty may never work.

To derive a utilitarian purpose from punishing the act of rape, the government has to design laws that will focus not only punishing the rapist but also their rehabilitation. The ugly vengeance of the death penalty needs to be abandoned in favour of a more constructive programme wherein rapes are not treated, but prevented. The first step to that would be for a society to address a rape for what it is: as a breach of the fundamental right to life, equality, liberty and security and freedom from discrimination. For that, a rigorous sensitisation programme ought to be run in the country so that justice is not sought but injustice is prevented.

 

Featured image courtesy Richard Potts|CC BY 2.0

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