Opinion | Let’s call a bluff, a bluff.
14 May 2018 3:38 pm
Image: Public protest at town hall for the Kathua and Unnao Rape case
“How can this happen again?” I thought to myself, watching news of the Unnao and Kathua cases flood the media.
As thousands of other people began to ask the same question, national outrage grew. Across the country, people poured out onto the streets to protest – reminiscent of those calling for justice for Nirbhaya. In my mind, I recalled the national outrage and protests in the early 80s after the Mathura and Rameeza Bee cases, where both women were raped while in custody. Back in those days, as a young lawyer and feminist, these were the cases one studied to understand sexual violence and rape laws. One heard stories of how the women’s movement came out to the streets to demand better laws for rape survivors.
Their relentless activism led to a number of progressive amendments to criminal law on rape. Higher sentences for cases involving custodial rapes were brought in, and more importantly, the burden of proof was shifted away from women. For me this was the first example of how public protests and shared outrage can bring positive change.
In the aftermath of the Nirbhaya case and ensuing public outrage, a number of much-needed amendments were made to the Indian Penal Code. The definition of rape was expanded to include all forms of non-consensual penetrative sexual contact. Enhanced punishments were also brought in for rapes committed during communal or sectarian violence. This, I thought to myself, is good. It is proof that our criminal laws can evolve to the needs of times, and that is always reassuring for a democracy.
Proposals for legal reform have now followed in the aftermath of the Kathua and Unnao protests. But this time, I find myself asking, will more laws and amendments solve the issue of sexual violence against women? Personally, this is almost an existential conundrum. As a trained lawyer, my faith has always been in the law. It is a recourse to which I naturally and instinctively cling. For me to question this is a bit unsettling.
Perhaps it is the kind of amendments, and the swiftness with which they have come about that is worrying. These seem to be passed hastily to calm national sentiment, without the due consideration afforded to past amendments. In particular, the Ordinance moved by the Central Government which stipulates the death penalty in cases of child rape is most worrying.
Experts and fellow colleagues who have spent years working on child safety and rights issues are almost unanimous in their opposition to this Ordinance. There is every chance that as a result of this Ordinance, reporting of child rape cases may actually decrease. This is because a majority of child rape cases are committed by people who are related or known to the child. This also puts the lives of the children in danger, as they are most often the only witnesses.
Apart from the institution of the death penalty, the Ordinance pays little heed to the inadequacies of the criminal justice system, or the challenges of accessing justice in cases of child rape. It also fails to address a key issue that has arisen in both the recent cases—direct political intervention in favour of the accused.
In Kathua, ministers of the ruling party actively participated in the protests led by the Jammu Bar Association against the charge sheet being filed. In Unnao, the law enforcement officials only took action after the High Court ordered the arrest of the Member of Legislative Assembly (MLA) accused of the rape. What this clearly indicates is political will to not bring perpetrators to justice.
Another aspect the Ordinance fails to address is the communal nature of the offence. In Kathua, rape and murder was allegedly used as a tool to settle scores against the nomadic (Muslim) Gujjar-Bakarwal community. While the communal card was played by local Hindutva groups—the Hindu Ekta Manch, and political parties, which claimed that the Crime Branch of Jammu and Kashmir Police was framing the accused, the communal aspect of the crime has largely been ignored by the political class.
Regrettably, this silence doesn’t come as a surprise. Politicians often bare their sexist and communal beliefs without fear of sanction or rebuke. At his swearing in ceremony, Jammu and Kashmir’s Deputy Chief Minister called the Kathua case – the rape and murder of an eight-year-old child – a ‘minor incident’. Yogi Adityanath, before becoming the Chief Minister of Uttar Pradesh openly claimed – “Women are not capable of being free or independent.”
This brings me back to my existential struggle. How can ANY legal reform on rape work if these attitudes persist, particularly among policy makers and those holding power? Passing laws are relatively easy. Ensuring true safety and justice for our children and women is another matter altogether. The time has come for us to hold our leaders accountable.
As the country approaches the national elections next year, let us hold them accountable for failing to prevent sexual violence, for failing to ensure that justice is done in all cases. Let us hold political parties accountable when their members incite communal hatred and perpetuate gender stereotypes.
Because if we don’t, then who will?