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Why LK Advani is Wrong?
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.
– Laxmi Murthy
January 12, 2003
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By arrangement with
Womens Feature Service
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