On Justice and Rape

There is so much of hue and cry demanding death penalty of the rapists of the recent Delhi rape case that asking certain questions seems unavoidable. First of all we need to ask if the idea of justice is premised upon revenge or on protection. If injustice is done by one citizen upon other then is it the duty of the state to take revenge on behalf of the wronged? Are crimes defined in terms of acts or depends upon other factors like circumstances and positions of the people involved? In India turning the pages of any pre-modern law texts like Manu or Kautilya suggests that, circumstances and people concerned in an act of crime plays a very important role in defining crime and delivering justice. The caste and religious factors always were into play while giving verdicts. Modern law claims to be impartial and objective. But is it really so? Who among us would deny that money and power plays a vital role in conducting a legal fight? While modern democracy claims the equality of all citizens in the eye of the state and equality of all subjects in the eye of the law, democracy itself is based on capitalist economy of private property and logic of ownership. Those who have are always already powerful over those who haven’t. When we talk about natural state of justice, of paying back to the perpetrator in the same coin we forget how in post-liberal world concepts like nature, natural, reality etc. are produced and fed in by economic difference and hierarchy. This difference is a ‘natural’ product of Capitalist economy of private property and ownership which reappropriates all earlier forms of feudal, upper caste, patriarchal and racist exploitations. The call for equality of modern constitutional democracy is therefore premised on a primordial, ‘natural’ inequality.

In a nation-state like India the democratic power structure stands upon the hegemony of handful upper caste leaders, businessmen and academicians – those who puts a screen over their privileged positions and shouts on behalf of a supposed equality. The political processes and governance are run through this fundamental equality. Therefore, judicial procedure can also be influenced by those who are powerful through extortion, suppression of evidences, installation of better lawyers and distracting the witnesses by force or money. On the other hand, the poor who are largely from lower castes and minority communities hardly have the money and resources to fight and pursue a case. In this situation, not only that an innocent person or less responsible person be framed for doing a crime but also that for the same crime most likely those who are in the rear end of political, social and cultural power would end up getting more punishment than others. In this lopsided system can we really then talk about death penalty without possibly making it a ritual murder and extermination of the less powerful? Does the society expect the less powerful to be naïve and crime-ridden while the power mongers continue with their onslaughts? Delhi Rape Case is a classic example of such disparity and short sightedness in our social imagination.

While the mass protest and collective anger shown against violence on women is long expected, it has to be asked why this particular incident fuelled it in particular. Rape is condemnable any day, any time. For that matter any act of violence of one over another for the sake of pleasure and enjoyment of the perpetrator is so. But rape and other violent crime, particularly those directed against women have become a commonplace and everyday affair. However, this delayed protest is fuelled by none other than this event. Why? One specific reason must be the difference between the wronged and the criminal. A young, educated, emancipated and urbanized woman getting raped tortured and murdered by a gang or hooligans, lumpens - bus driver, conductor, and other laborers. The class and cultural difference is conspicuous. We need to ask if rape of an illiterate, rural, tribal or lower caste woman would initiate similar anger and protest. Further, if the perpetrators are from elite, middle-class households – people holding white collar jobs, politicians, businessmen or those in power would we have shown similar enthusiasm in our call for death penalty? It is easier to make those whom we don’t identify with killable than accept the fact that most of the rape cases reported in India are done by family members of the victim who are hardly even filed a case against – forget about penalty. Is it not legitimate to ask then, if so many people after doing the same crime get caught free, then why only some should be vulnerable to death penalty? When we know that no system of justice can ensure equality then why give such a punishment to someone from which nobody can ever recover. The legal system in modern world is directed towards maintaining social equilibrium and sanity. It attempts to ensure that nobody can wrong others without incurring some loss. The rationality of avoiding acts which would make one incur loss is supposed to prevent crimes. The objective of judiciary is not to seek revenge on behalf of the wronged party. We need to understand the delicate differences between revenge, security and justice before commenting upon the necessity of punishment. First of all, punishment is not revenge. It is a limited amount of loss inflicted upon the criminal to set an example for others. The aim of judiciary is not to terrorize but rationalize. Therefore, there is a system of trial in any civilized democratic country. The state is given the sovereign power to protect its subjects. But the state power is limited by the judiciary as there is no guarantee that the state and its managers will not themselves become unjust and violent over others.

If we look into history we shall see how state repeatedly in order to secure itself have organized murder, rape and extermination of its dissenting voices though military operations. In the name of development it has used its power to displace people whom it thought less important to its unequal democracy. Such examples are also not very rare in India where Republic day gallantry award is given to a person accused of rape and torture in police custody. In many such cases judiciary becomes the only resort to fight back these injustices without waging war against the state. We need to remember that the taking away of the right to life and property by the state mostly happens through the argument of providing security and ensuring development. It is only the court where one can go to fight these back. The state in the name of security often becomes revengeful on its dissenters and non-conformists. Judiciary attempts to check such activities of the state where one can appeal expecting judgments unaffected by the state power. When people are shouting for punishment without trial in case of rarest of the rare criminals, then we need to ask who is legible to identify criminals and call for punishments.

In a divided and lopsided society it is easier to hear voices of the privileged against those who are not. To cite examples – one can be almost sure that, if an urban middle class woman is raped by her servant legal actions might be immediately taken while if she is raped by her uncle or father-in-law is may not be so. On the other hand if a maid servant is raped by her employer, there are rare chances that even a case will be filed or taken to the court. In this situation are we really in a position to claim a punishment as absolute as death? Moreover, death cannot be a punishment for the one who is dying. He/She does not incur a loss or experience that after death. Rather the unfortunate family of the sentenced has to bear the loss. In a class divided society that becomes too heavy for them to manage as generally and mostly criminals coming from marginalized sections get punished. In spite of all these those who think that it is obvious to call for revenge as a recourse to justice in a rare crime like rape and murder, it can legitimately be asked to them that who gives them the authority to think they can pass on a judgment and claim that there should be death sentence without trial? Does their upper class, upper caste, Hindu male chauvinist position legitimizes them to claim revenge from the state on their behalf upon the hated criminals? The logic of protection which claims cleansing of the threats to human life and property is the same which suggests the women to dress properly and not go out late at night instead of diagnosing the deep seated misogyny of Indian society. Why they cannot accept the fact that human life is always unprotected and vulnerable to threats? Do they call for revenge when a near and dear one dies of cancer? Do they call for death penalty of the person from whom one gets HIV? In case of rape why then it is difficult to accept that a subject is motivated to do such an abominable act owing to the ways of society and culture in which we live?

The subject is only partially responsible for the act. Of course everyone does not rape or do crime, but does everyone dance or write poetry? Just as dancing and writing poetry are parts and parcel of the habits, values and ways of the culture we live in, so is rape. Rape is often done to take revenge or vent out anger rather than gratify one’s sexual desire. It is done to show one’s power and capacity to humiliate. Let us ask then why rape is humiliation? Would other kinds of gendered violence like bride burning or acid attacks or honor killings invite such agitations ever, the way it happened in Delhi rape case? While this case has become an occasion to talk about different types of sexual violence on women and other sexual minorities, can one think of similar mass uprising against rape and torture of people who have non-normative sexual orientations and gender identities? Yes, in such cases as well perpetrators are generally not even filed against. Isn’t the call for death penalty then naturally getting directed towards a particular class committing a particular sort of crime on women of a certain class and profile, while others are often not even charged with a case? Before making demands of change of rape laws and introduction of death penalty, if possible without a trial, we need to understand that we do not live in an absolutist state. We live in a limited democracy. And it is a relief to all of us knowing how much appropriated and shaped our democracy is by the dictates of capitalism and its inequalities. If the moneyed and the powerful - mostly the upper caste Hindu male can influence and effect the processes of trial and judgment, then it isn’t difficult to presume what may happen if sentences are given without trial. A sovereign democracy must set its own limits to ensure people that it is not going against anybody’s interest in particular. It has to operate though all these limitations. Since each verdict - each judgment is passed on through these limits it also must not be absolute. Above all, while judgments are given, justice has to be arrived at. It has to be measured carefully. The question of justice always remains unresolved and shot by several social factors. What the court gives are judgments. It cannot deliver justice. Justice is always incomplete. So the most just thing is to make the judgment less severe and less absolute keeping open all benefit of doubts.