How the demand for summary justice for rapists will backfire on India's poorest citizens

This comment piece by me appeared in The Telegraph, London on December 12, 2019

Link: https://www.telegraph.co.uk/news/2019/12/09/demand-summary-justice-rapists-will-backfire-indias-poorest/

The gruesome rape and murder of a 26-year-old woman, within the city limits of Hyderabad on November 27, has set off a furious debate in India on crimes against women. 

There are growing demands for summary justice, including public lynching of rapists, even though the death penalty was included in the rape law in 2012. Have people lost faith in the law and in the criminal justice system? Or does this represent growing lawlessness and demands for retribution and revenge that have come to dominate public discourse in India?

In 2012, when a 23-year-old woman was brutally raped by six men in New Delhi, there was nationwide outrage and demands for a change in the law. 

The law was changed in 2013. The death penalty was introduced. Policemen refusing to note rape complaints were to be held criminally liable. A special fund was created to set up one-stop crisis centres across India. And state governments were directed to fast-track rape trials so that they were not indefinitely delayed, as they tend to be.

Six years later, crime statistics show that the incidents of rape have not decreased. The conviction rate is an abysmal 27 per cent even of the cases reported. Police continue to ignore complaints by poor and marginalised women despite the law. And only 20 per cent of the funds for the one-stop crisis centres have been used. Also, many states have failed to set up fast-track courts for rape. 

Clearly, a stronger law alone makes little difference when the criminal justice system continues to fail women, from the first step of registering a complaint to the trial that stretches for years. Many women simply give up. Many more, stay quiet. 

This apart, what is more worrying for the future of women in India, and for India itself, is what followed the Hyderabad rape. 

Within days, the police had rounded up four suspects and claimed they had confessed. Their names were made public. One happened to be a Muslim. This led to demands for summary justice on social media, dominated as it is by Islamophobia. 

Then a woman member of parliament demanded that rapists should be lynched in public. Another suggested chemical castration.  Instead of disgust, such demands were applauded. 

The calls for lawlessness by our lawmakers were heeded, it would appear, by our law enforcers. In the early hours of December 6, the four suspects, who incidentally could find no one to represent them in court, were taken out to the scene of the crime and shot dead. 

The police claim the men tried to escape and snatched their weapons. They had to fire in retaliation, they say. Yet there is no evidence yet of anyone from the police contingent being injured. The four suspects are dead. And the case is closed. 

As worrying as is this extra-judicial killing, of men against whom even a charge sheet had not been prepared, has been the response of the public and politicians. Almost across the board, there has been praise of the actions of the Hyderabad police. People showered flowers on the policemen. And there are demands for similar action, known locally as ‘encounters’ against other rapists. 

In fact within days of the Hyderabad incident, a young woman was set on fire by men she had accused of rape in a village in the northern statue of Uttar Pradesh. She died a few days later. Now her parents are demanding that the accused be ‘encountered’. 

It is this deadly mix of demands for public lynchings, and for the police to simply eliminate suspects of crime, that should worry us. India still calls itself a constitutional democracy. But when law-makers endorse lawlessness and law enforcers implement this, you are looking at the beginning of a serious breakdown in civilisational norms. 

Since 2015, we have witnessed public lynchings of poor Muslim men, in the name of protecting the cow, held sacred by Hindus. The ruling  Bharatiya Janata Party has deliberately turned a blind eye to this. 

Today, in the name of protecting Indian women, summary justice is being demanded. The men who will receive this will only be the poor, the marginalised, those unable to mount a defence. While the rich, the powerful, including so-called godmen, remain untouched. 

Indian women will only feel safe if we fix the criminal justice system, deal with the rape culture being reinforced by mass media and end embedded patriarchy that still views women as property. 

Here’s proof that the print media in India is alive and kicking

My column in Scroll.in

The print media in India is alive and kicking. If there were any doubts about this, the last few weeks have dispelled them.

Two of the biggest exposés this season have come from print. One from Somesh Jha of Business Standard, published on January 31, on the jobs data in the National Statistical Commission’s employment survey 2017-’18 that the government has been desperately trying to hide because it reveals the extent of unemployment, the highest in 45 years.

And the other, a story that is still unraveling every day, is the series by N Ram in The Hindu about the controversial Rafale deal between France and India. Both Jha and Ram have produced documentary evidence that has put government spokespersons on the spot while trying to explain their side of the story.

The two stories are a reminder of how journalism needs to be done, slowly and painstakingly until what is put out to the public is convincing.

While no one yet has faulted the facts in these stories, sometimes complex stories like the Rafale imbroglio pose a challenge to the lay reader. For instance, the first story in The Hindu on the pricing issue was dense and contained information that the uninformed reader would have struggled to follow. Did India under the current government pay more for each of the 36 fighter jets than it would have for the earlier deal of 126 jets negotiated by the previous government? Now, according to the report tabled in Parliament by the Comptroller and Auditor General, it did not. But the documents emerging in the public realm suggest that this is not yet a settled fact.

However, the two stories that followed this one were clearer and unravelled several important aspects of the deal, such as a set of parallel negotiations being conducted by the Prime Minister’s Office without the official negotiating team from the Ministry of Defence being informed, and changes in certain clauses that allowed the seller to get away without giving a sovereign guarantee. The latter has been confirmed by the Comptroller and Auditor General.

Jha’s stories on the jobs data could not have been clearer and the reader would be left in no doubt about why in election season, a government would not want such facts to be in the public domain.

Calling out the bluff of the government is the job of the media in a democracy. That is the importance of these two exposes.

It is also the job of the media to fact check and point out the misinformation, and sometimes lies, put out by the people in power. When politicians, like the prime minister, receive widespread coverage for all their public events, what they say at these occasions is out there without any questions being asked about the veracity of the statements being made.

 

Death sentences in India

One such statement was made by Prime Minister Narendra Modi at a meeting in Surat at the end of January where, according to ANI, he said: “There used to be rapes in this country earlier too, it is a shame that we still hear about such cases. Now, culprits are hanged within 3 days, 7 days, 11 days and a month. Steps are being taken continuously to get daughters justice and results are evident.”

This statement, posted on Twitter by ANI, brought forth a number of adverse comments, calling out the inaccuracy of Modi’s statement. Even Scroll.in carried an article on this.
However, another fact check by Mumbai Mirror pointed out that in the translation of Modi’s speech, ANI had erred. Where the PM had spoken of the death sentence, the agency had used the word “hanged”.

The paper also pointed out that indeed, there had been judgments in lower courts awarding the death penalty to rapists within a short period. The cases quoted are all from Madhya Pradesh: one was awarded in July within 22 days, another in the same month within 46 days and one in August within three days. There have been no hangings in India for rape since 2004, when Dhananjoy Chatterjee was executed for the rape and murder of a 14-year-old girl.

What is worrying about the prime minister’s statement is not that it was not factual, but that it was, at least partially, true. If judges are handing out death sentences so rapidly, should we not be worried? Not only those of us who are principally against capital punishment. But because such hasty decisions are precisely the reason there was opposition to the introduction of the death penalty for rape by the Justice Verma Committee in its 2013 report. It had argued then that “in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty”.

In any case, official data from the National Crime Records Bureau (only available until 2016) illustrates that the introduction of capital punishment for rape has made no difference to the crime rate.

Second, also of concern is the prime minister taking credit for these rulings. “Steps are being taken continuously to get daughters justice and results are evident,” he said. What steps are these that his government is taking that are resulting in such rulings? Are public prosecutors being incentivised to push through rape cases? Are lower court judges being nudged into delivering quick rulings?

The law was amended in 2013, and the death penalty was introduced for the “rarest of rare” cases, before his party came to power. One would really like to know what the prime minister meant. But no one has asked him. And in any case, he is not available for pesky questions from the press.

 

India’s sex ratio

Take another similar claim that the prime minister made about the sex ratio improving under his watch.

On more than one occasion, Modi has lauded his government’s Beti Bachao Beti Padhao programme, crediting it with having improved the sex ratio and female literacy levels in Haryana, Rajasthan and several other states. While that might be true in the case of specific districts in these states, the reality is somewhat different as an editorial in The Telegraph points out. Indeed, even if there is an improvement in some states, in the southern states with better female literacy rates, there has been a perceptible decline in the sex ratio.

Another report in The Telegraph illustrates this by giving data from Bihar where in a district like Vaishali, although the female literacy rate has improved from 50.49% in 2001 to 68.57% in 2011, the sex ratio has declined from 937 girls per 1,000 boys in 2001 to 894 in 2011.

And overall, the sex ratio at birth in India has declined from 887 in 2014 to 877 in 2016.
This is something not just the government, but Indian society as a whole needs to worry about. Clearly, governments cannot pat themselves on the back if female literacy rates increase and assume that this will inevitably result in an improvement in the sex ratio. The roots of son preference, and therefore sex selection, are embedded in a patriarchal culture that appears not to be dented either by government literacy programmes, or by stringent laws.

(Click on the link above to read the original)

Crime and Punishment

The Hindu, Sunday Magazine, Feb 17, 2013

APShould a civilised society be moving away from capital punishment or continue justifying its continuance? File Photo

Introducing the death penalty for rape will create more problems than it will solve.

On February 9, a man was hung to death in Tihar jail. Justice was done, said some. Others felt the man had not been given a chance to prove his innocence. And still others felt that irrespective of the case, the dictum of an eye for an eye and a tooth for a tooth could not be the imperative that a civilised society follows.

The object of this column is not to go into the details of the Afzal Guru case, although it is one that should not be pushed aside as old news. But two months after the gang rape of a young woman in Delhi, a terrible tragedy that triggered waves of protests and demands for justice, it is important and relevant for everyone, including women, to talk about the death penalty.

Do we as women, destined by biology to give birth and ordained by society to be nurturers and care-givers, support a regime that awards death for certain heinous crimes? Do we believe that taking a life will act as a deterrent to those who destroy lives? Do we accept that the system of justice is so even and fair that even the poor, the oppressed, those without the wherewithal to survive long drawn out legal battles, can get justice? Should a civilised society be moving away from capital punishment or continue justifying its continuance — and even demand that it be extended to more crimes, as is happening in India? These are questions that we must ask, debate and resolve.

The reason why the death penalty should concern all women is because of the crescendo demanding death for rape that followed the December 16 Delhi rape. In newspapers, television channels, everywhere, you heard voices arguing that only death would act as a deterrent. The government has apparently decided to respond to this chorus of demands for death by introducing the death penalty for rape in the recent ordinance that was promulgated on February 3, the Criminal Law (Amendment) Ordinance, 2013. Introducing the death penalty for rape flies in the face of the Justice Verma Committee’s recommendations.

It is a pity that the government has chosen to do this without considering the reasoned and excellent discussion on the death penalty in the Justice Verma Committee report and also without allowing the time and space for more opinions to be garnered on this question. Instead, to show that is finally becoming “decisive”, it has rushed through an ordinance even when Parliament is about to begin its budget session.

There are many aspects to this debate. On the death penalty for rape it is worth reading the Justice Verma Committee report, available for a free download on several sites including www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary-2628/, particularly chapter nine, which deals with “Sentencing and Punishment”. The chapter begins with a quote from an American judge, Justice Stewart in Furman v Georgia that sums up the philosophical argument against the death penalty: “The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”

The Committee has argued that introducing the death penalty for rape could lower the conviction rate rather than enhancing it or acting as a deterrent. It has recommended instead, that the punishment should be from a minimum of 10 years to life, with “life imprisonment” redefined to mean the end of the natural life of the convict. It has also pointed out that across the world, the majority of countries have revoked capital punishment.

Furthermore, the UN Human Rights Commission adopted a resolution in 2007 that asked all countries for a moratorium on death penalty paving the way to its ultimate abolition. In support of the death penalty, some young women have argued with me that if men know that they will be hanged if they rape women, the incidence of rape will automatically decline. They point to countries where capital punishment is liberally used to control all forms of crime. They forget however that in many such countries, women are confined, not given the right to move freely in the public space. Also in such countries, the sexual assaults within the home, which anyway constitute the majority of crimes against women in practically all nations, are never reported. Thus, the mirage of fewer crimes is created without actually reflecting the reality. We need to ask whether millions of women — rich, poor, urban, rural, tribal, Dalit, and women living in conflict zones where the armed forces have impunity against such crimes — would feel more secure if men are hanged for rape. Within the existing, and deeply flawed, criminal justice system in India, introducing the death penalty for rape will throw up many more problems than it will solve. We need justice for the victims of rape. But for that we need an efficient criminal justice system that registers cases, that collects evidence and that prosecutes.

This is far more important than an extreme form of punishment that might allow judges to pass lenient sentences because they are not convinced that the crime deserves death. Fortunately, the ordinance will lapse within six months if it is not passed as a law by Parliament.

Here is a window of opportunity – to bring in a more nuanced and balanced argument on how to ensure justice for crimes against women without the death penalty.

(to read the original, click here)