In a year when violence against women was a recurring leitmotif in people's consciousness, why is it that women's groups are not greeting with applause Home Minister L K Advani's declaration that rapists should be punished with death?
Why is it that the most vehement critique against death penalty for rapists has come from feminists? And why is it that the women's movement is forced to pursue issues that were raised more than 20 years ago?
One very good reason might be that unfortunately, these concerns are just as relevant today as they were two decades ago. The countrywide campaign in what has come to be known as the 'Mathura Case' brought rape on to the public agenda in the 1980s. The rape of a 17-year-old tribal girl by local policemen near Bombay and the subsequent acquittal of the rapists led to nation-wide protests against patriarchal notions in the judiciary. The agitation sparked off by the Mathura case led to significant changes in the Criminal Procedure Code and the Indian Penal Code, especially shifting the onus of proof onto the accused in custodial rape.
The need for sustained campaigning even today is apparent from the fact that it was only in November 2002 - over two decades of campaigning later - that the Union Cabinet approved an amendment to the archaic Indian Evidence Act of 1872. The amendment, which seeks to debar questions related to general moral character in the cross-examination of a woman who has initiated proceedings against rape, was also recommended by the Law Commission of India in its 84th and 172nd Reports. If passed by Parliament, this might go some way in delinking the crime of rape from the prosecutrix' character, even though much remains to be done.
The atrocities committed on Muslim women in Gujarat bring to the fore the inadequacies in the rape law in glaring ways. Scores of women were raped and their bodies burnt beyond recognition, but their rapists will go scot-free because the 'evidence' of rape no longer exists. Women and minor girls were gang raped in full public view, yet there are ostensibly no witnesses. Women were brutalised, with cricket bails and lathis (sticks) thrust into their vaginas, but this is not considered 'rape' as presently defined in the Indian Penal Code, which defines rape as non-consensual 'penetration of the vagina by the penis'.
Women who were raped were on the run for days, too terrified to approach the police who had shown their communal colours, but 'delay in filing FIR' is held against them as a demonstration that the complaint is not true. Unable to seek medical treatment, women are blamed for not furnishing
medical reports to prove that they were raped.
The result? Only a handful of rape cases registered, and many of these withdrawn as complainant after complainant is forced to retract her statement by mobs that still roam free and threaten dire consequences if rape charges are pursued.
Can death penalty for rape tackle this situation? Will Mr Advani pronounce the death penalty on the unnamed 'mobs' that committed unspeakable crimes of sexual violence on the Muslim women of Gujarat? Clearly not. It is apparent that the existing criminal justice system in India is not capable of dealing with incidents of sexual violence, particularly those of a communal nature. What the experience of Gujarat shows more clearly than ever is the need to eliminate unjust evidentiary requirements that prevent prosecution without medical reports and other corroborating evidence.
While the sexual violence in Gujarat has been dismissed by no less a person than the Defence Minister of the country as occurrences that 'always happen' during riots, the general public in Delhi was shaken by incidents of women dragged into moving vehicles and raped, and students raped in broad daylight - what have been termed 'rush-hour rapes'.
A student of the law faculty in Delhi University was gang raped possibly by fellow students. A medical college student was raped within a kilometre of the Police Headquarters and the National Commission for Women. Even as debates rage about whether the former was acquainted with the rapists, and whether the accused in the latter is actually a minor, the Delhi Police recently claimed a 10 per cent decline in crime, including rape.
Why is it that these claims are not convincing? A study in 2001 by Rainuka Dagar on 'Combating violence against women in Punjab' conducted by the Institute for Development and Communication, Chandigarh, found that for every reported rape case, 68 rapes went unreported. Silence forced on
victims of sexual violence by anti-women biases in the police and judiciary, and an absence of familial and community support are apparent in this low rate of reporting, a situation found elsewhere in the country too.
The knee-jerk reaction of the Delhi police, in response to the spate of crimes against women has been to set up 'special teams' to tackle crimes against women. Mobile teams to patrol and answer distress calls, arresting persons suspected of 'eve-teasing' etc are supposed to engender a feeling of security.
Is it any surprise that they do not? A survey conducted among students by Saheli - a Delhi-based women's group - found that a shocking 95 out of 100 women said that they would not report an incident of sexual violence to the police. 'Lack of trust', 'fear of further complications' and 'negative publicity' were some of the reasons they cited.
A recent (2000) report of the National Crime Records Bureau shows that between 1996 and 1999, the conviction rate for rape in police custody was zero. Will death penalty for rape correct this appalling situation, where law keepers break the law and get away with impunity?
This is not the first time that L K Advani has pronounced death penalty for rapists. Two years ago, in 2000, this proposal had generated much opposition from women's groups. The National Commission for Women too had rejected the death penalty for rape and recommended instead that trials in rape cases be speeded up and procedural delays in trials be reduced through special courts.
There can be no compromise on enlightened jurisprudence that seeks to go beyond the 'eye for an eye' principle. Besides, it is apparent that death penalty does not deter crime, and numerous studies have shown that judges are less likely to award the death penalty, which they reserve for the 'rarest of the rare' cases.
With an already low rate of conviction, introducing the death penalty is likely to further reduce the chances of conviction. Of great concern is the likelihood, as demonstrated in countries like the US, that men from minority communities make up a disproportionate number of death row inmates. In the context of India, a review of laws that are punishable with capital punishment brings out the discriminatory way in which such laws are applied to disadvantaged communities - religious and ethnic minorities and dalits.
Awarding the death penalty merely appears to be a 'solution' to a complex problem that can be tackled only through commitment. Commitment that rests not on votes, but on genuine law reform and changing societal attitudes to sexual violence against women.