Nirbhaya gangrape case: Separating fact from emotion
Upholding the death penalty for the men accused in 2012 Nirbhaya gangrape in Delhi is unlikely to act as a deterrent for the crime of rape
In keeping with public sentiment, the Supreme Court has decided to uphold the death sentence against the four men who fatally gang-raped a student on the night of 16 December 2012.
A ‘barbaric crime’ that has ‘shaken the conscience of the nation’ said Justice R. Banumathi, one of three judges hearing the condemned men’s appeal. The crime thus met the ‘rarest of rare’ standard that merits capital punishment. Spontaneous public applause outside the courtroom greeted the judgment, report TV channels.
Indeed, no other reported rape has evoked the kind of public reaction than the one we know as the Nirbhaya rape case.
More brutal rapes have been reported since — an 11 month old baby girl raped by her neighbour in Delhi’s Vikaspuri, a 28-year-old raped, tortured and murdered in Rohtak, a mother alongside her 14-year-old daughter in Bulandshahr — but none that galvanized the sort of public revulsion and uproar as the December 2012 crime.
Four and a half years later, the “Nirbhaya case” remains a touchstone of almost mythical proportion. No single crime has resulted in as much law making and law amending as this one. The citizen-led nationwide protest following the rape, resulted in the setting up of a judicial commission headed by Justice J.S. Verma, a retired Supreme Court judge and, eventually, an amended law that is much tougher on rape.
It also resulted, in large part, in the government’s decision in December 2015 to lower the age of delinquency from 18 to 16 for heinous crimes. This was spurred by widespread public anger when one of the six rapists, a juvenile, was released after serving a three-year term in a remand home.
Yet, the confirmation of capital punishment on the perpetrators is unlikely to act as a deterrent to rape for several reasons.
Chiefly this is because rape adjudication, points out Mrinal Satish, a professor at the National Law Institute, Delhi, in his book, Discretion, Discrimination and Rule of Law, is riddled with inconsistencies and a tendency to very often judge women by their past sexual history. Rape myths such as the absence of injury is also likely to impact sentencing. Without in any way diminishing the extent of brutality inflicted on her, Nirbhaya — the epithet ‘fearless’ conferred by media — in many ways met the standards of being an ideal victim — the hard-working daughter of an airport loader who had sold his land in order to educate her. She was someone aspirational India could and did empathise with.
Despite an initial death sentence by a fast-track court on the rapists just months after the December 2012 crime, the number of reported rape cases has only increased. In 2015, according to National Crime Records Bureau, 34,651 cases of rape were registered. In 95% of these cases, perpetrators were known to the victims.
“The evidence of any deterrent value of death penalty is extremely sketchy, and the arbitrariness with which judges decide rarest of rare makes it very problematic,” says lawyer Mihira Sood who assisted the Justice J.S. Verma Commission. “Hanging these men will achieve nothing that life imprisonment could not achieve, and it will allow the government to portray itself as being concerned about women’s rights without having done anything concrete.”
The Nirbhaya judgment will to some extent assuage a sense of retributive public justice. Her parents have been insistent on it, as has public opinion. What the verdict will not do is address the root causes of sexual violence: patriarchy and misogyny.
The hanging of four men — no matter how richly deserved —will not answer the question why despite tougher laws, rape continues. Why are survivors of sexual assault subject to public scrutiny? Why does under-reporting of sexual violence continue? With only one in four rape trials resulting in conviction, what can be done to increase conviction rates? What steps have governments taken to make cities safer and more inclusive of women?
There are no answers to these questions. If anything, the new rape laws following Nirbhaya have resulted in unanticipated anomalies. For instance, increasing the age of consent from 16 to 18 has resulted in a large number of rape cases being reported by irate parents. A 2014 study conducted by The Hindu found that in Delhi, a third of all rape cases under trial dealt with consenting couples where the woman was under 18 and the parents had accused her boyfriend of rape.
While capital punishment to the four men condemned to the gallows might bring some measure of closure to the family of the victim, it is unlikely that it will make a dent to India’s shameful statistics on sexual violence.
“Certain attitudinal change and change in the mindset is needed to respect women and to ensure gender justice,” observed the Supreme Court judgment. Bringing that about will take more than the length of a hangman’s rope.