‘Important to not play politics over women’s bodies’     

We are victims of multiple failures at multiple levels. We are victims of poor policing, of a very slow and tardy judicial process. We unfortunately care very little for women’s rights other than lip service. We breathe misogyny and sexism in our homes, workplaces, on our roads and where ever we go. When something horrific like the recent rape and murder in Hyderabad takes place, we want to make an example out of it by showing how strong we are. We do it by asking for the most bizarre punishments – from public lynchings to hanging without trials or demanding death penalty. All of this is creating an atmosphere where you ae actually empowering lawlessness. Of course the first respondent — the police — did not do their job.

But, this is not the first time we are hearing that. We hear that routinely — that the police is insensitive to the complaints made to them, the police does not act fast enough, the police’s response time is too long, the police counters a request by a family in deep panic by casting aspersions on the character of a woman and wastes precious moments over that and the police quibble over jurisdiction. In the end, the incident is over and here you have a brutal rape and murder to show for their callousness.

Once the incident was discovered, there was public reaction just as there was in 2012. Then that public reaction gets out of hand and that’s what we saw here. We must reflect as a society as to why this is happening. It is because we don’t respect women enough, the institutions which are supposed to protect citizens don’t do their job and the institutions with the responsibility of carrying out criminal justice is so tardy that people have lost faith in it. A combination of this becomes toxic. And at the end of it we see people congratulating those who were a part of the Hyderabad alleged fake encounter.

I am someone who sees this daily on the ground and I was quite shocked and horrified at the public response. Either of all us are out of touch with reality or something has happened which provides the breeding ground for this kind of toxic response. It is something which needs to be corrected and it is not something which a republic, governed by a Constitution, can ever encourage. It happened in Hyderabad on Friday and after that we had another horrific incident soon after of a young woman who was set to fire on her way to the magistrate and she died soon after. Her poor and marginalised father is asking for the same punishment.

When you unleash a monster, you will never be able to control it. And the monster was unleashed when the police thought that it was alright to kill the four accused. And afterwards they were congratulated, and petals were showered on them. That demand will be made again and again and it will be impossible to be fulfilled. How are we going to justify any of this? At all levels there has been a complete breakdown – at the level of the police, at the level of the criminal justice system and at a basic societal level. We need to reassess and ask ourselves where this is taking us, what kind of people we are becoming and what is that we want our children to inherit from us. Certainly not a space which is so full of unchanneled rage because rage and anger without solutions is not productive.

There has been an erosion of constitutional values in our system. What was unthinkable a couple of years ago has been normalised. When women are attacked in this manner, rapes and sexual violence become commonplace, society will react to it. It is being seen now, but my concern is that our reactions must be tempered in a way that we can correct the wrong steps. We can’t take law into our hands and the Chief Justice of India SA Bobde has reiterated it too. Justice is not about revenge, justice is not about instantaneous responses. There is a procedure and it must be followed. Yesterday, it was these four men, tomorrow it could be you and me.

We keep complaining about the faulty criminal justice system but how invested are we in rectifying that? How invested are in ensuring that the police act in a constitutional manner? How invested are in making minor societal corrections – in the way we raise our sons and daughters? How invested are we in not tolerating even the minor misogynistic remark?

Rape is an extreme form of sexual violence, but women are subjected to all manners of violence – violence in their homes, sexual violence from their partners and people who are related to them, violence at the workplace, on the roads, in schools. We need to change the way we think, the way our partners think, our workplaces think, and any shortcuts will only lead to madness.

There is a growing clamour for awarding death penalty for all rapists. Death penalty has been in our statute books ever since the Indian Penal Code came into existence for murder. For murder, it is either life punishment or death penalty, but does that mean there are no murders in the society?

Every time such incidents happen, people began to ask for increased punishment. How far can you go? Suppose death penalty is made mandatory, then what after that? These incidents are not going to stop. This is the easier response people can give to an extremely complex problem. We are not addressing the root causes of the problem. The basic inequalities in society are not being addressed, and instead people are asking for the most violent punishment. The lawmakers can put it on the statute book, but what will it change. The demand come from complete ignorance about ground realities. It is the laziest and easiest thing to ask. For some reason, it resonates in people’s minds that death penalty will solve everything. It solves nothing. After you make it mandatory, what is the next punishment that will be given? Where will this end? It can’t go on and on.

What is required is the certainty of punishment, rather than the severity of punishment. Feminists and women’s movements in India have said this repeatedly. It must be clear that is a person commits a crime, they will be caught and convicted for the crime committed. It is the certainty of punishment which will prevent future crime rather than the elusive death penalty.

As a practitioner of law, the moment you start increasing punishment, the courts will begin to demand a higher standard of proof. A man can’t be simply killed on specious evidence. A person can’t be sent to gallows on evidence that doesn’t stand up to judicial scrutiny. In a court of law, you have to prove your defence as in every civilised society. The minute you ask for higher punishment, the conviction rates will fall as then the courts will expect a standard of proof that most will be unable to meet.

With this demand, only one part of the issue is being addressed. Have any of the people who are demanding death penalty engaged with rape survivors? With this demand, the focus is only on the person who died after a brutal rape, not of the living rape survivor, who has to go to court, who has to face the brutal cross-examination?

As part of my work, I engage with such people and now I am settling certain petitions to expunge a few questions asked during cross-examination to rape survivors. Some of the questions are brutal and re-traumatise the survivor. She is traumatised every step of the way — by the incident, the police re-traumatises her and the justice system further re-traumatises her. Nothing has really changed there. She goes through various manner of physical and mental breakdown. Is the system giving her the support she requires? Where are the people who clamour for death penalty, who celebrate on social media when real victims need their assistance?

I think it is important to not play politics over women’s bodies. It is important to respect civil liberties. The men who were killed in an encounter in Hyderabad were on their first remand. They had been arrested and were given to police remand. It was duty of the police to ensure that they were protected and produce them in court. They did not do that. At this stage, other than the police version of events, we have nothing to suggest that these men did or didn’t commit the crime. They may have done it, but no one has seen the evidence of it either. There is always presumption of innocence. Even if they were guilty of the crime, the police do not have the right to do what they did. It will lead to anarchy. A lot of the politicians celebrating this are people who themselves have cases against them and are people who are being called out for sexual harassment. When people oppose their views on social media, they turn around to say that they will rape the person who opposed their view or will rape their daughters. Is that the view that they have of women?

We see the police failing again and again. We saw them failing in the case of the December 2012 rape, them failing very starkly in case of both the Unnao victims. We saw a complete lack of empathy, FIRs not being registered, the accused being given bail because the case was weak. It needs to be repeated that if the police did their jobs, a lot of our problems would be over. The police also suffer from many problems of being under-staffed and lack of skills, but we can only make do with what we have. Despite the fact that the law changed in 2013, we still have a long way to go in the way which we treat rape survivors, the length of time we take to finish these cases, the lack of sensitivity in court and the manner in which the rape survivor is brutalised during cross-examination. We cannot reach a stage where the survivor begins to ask herself why she filed the case.

There is a shortage of judges in lower courts and percentage of cases that a judge has to hear is enormous and almost impossible for a judge to take care of it on a daily basis. All of this requires urgent attention and here both the executive and the judiciary must work together. These figures have been doing the rounds for years and yet there has been a callous response. Ultimately, more courts have to be built, more infrastructure created, more training and adequate support staff. But, it must be done for the system to change. Without this, the system will not change.

As told to Ashlin Mathew

(The writer is a senior lawyer)