IS DEATH PENALTY FOR RAPE RIGHT?

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Anguish, despondence and cynicism is not enough. We, as a society, must find solutions.

So I decided to read up a lot on rape, solely to find solutions.

Nilim Dutta has observed that in the five years between Jyoti Singh and Asifa, 250,000 rapes were reported. Of these 71,000 were child rapes. He also pointed out that he was not counting the rapes that ended up in murder because NCRB records a rape & murder as just murder. 136 rapes are being committed daily, of which at least 34 are child rapes.

Mind you, these are the cases that are reported. We do not know how many instances of rape go un-reported. They may include rapes within the family or close circles of friends. Let us not deny that there are strong inhibitions still, about reporting rapes. Hush up of rapes is rampant.

For instance, in another private discussion, an outstanding officer in the government, working in the field, pointed out cases where the adolescents raped were physically challenged, and were hearing and speech impaired. It boggles the imagination to think of what they may have gone through.

And I am not counting rape within marriage, because Indian law does not recognise that as rape!

Then we come to the aftermath of rape. A few cases are highlighted and the simmering anger of people explodes on social media. However, we also have seen now the terrible spectacle of people forming processions to protect the alleged rapists, preventing their arrests and even waving the Indian flag in protest. And endless whataboutery.

Yes, we are that indifferent to rape. I shudder when I think of it.

But where are the solutions?

Most people seem to think that capital punishment is the most obvious solution. But here, I go with Kanishka Sinha, who says that the death penalty for rape might make life even more dangerous for women in India, because it incentivises the rapist to kill his victim so she can’t talk. If the penalty for rape is the same as for murder, then there is no reason for them not to escalate the crime, he says.

Could some process changes in how investigations are conducted be part of the solution?

In a related context, about twenty years back, three of us, IAS officers, Renuka Viswanathan, Shobha Nambisan and I collaborated with an NGO, Vimochana and a couple of lawyers, Meghana and Geetadevi, who investigated the large number of ‘unnatural death cases in which young women were dying, in Bangalore. There were about 700 such deaths in the city every year and most were closed as kitchen accidents, caused due to stove bursts. Our study revealed a horror story of cover-ups of what were basically cases of domestic violence resulting in death (with or without dowry involved). This study was published in Manushi in 2000, titled ‘Getting Away with Murder: How Law Courts and Police Fail Victims of Domestic Violence’.

Our study showed that police investigation officers were bribed or influenced by the killers of these women, to cover up what were cold blooded murders. They did this by undertaking the investigation under Section 174 of the CrPC in a standard format, which they stuck under the noses of Executive Magistrates, who signed these without applying their minds. Doctors too, were bribed to apply their influence on patients so that exonerated their murderers in their dying declarations .

The police had their own police manual, which was quite elaborate in how to deal with such cases. Yet, the police did not heed their own manual. Thus, when they investigated cases where women allegedly died due to stove bursts, (many families still cooked those days with pressurised kerosene stoves), they did not collect the fragments of the stoves for investigation. Besides, we also discovered that while death was allegedly due to stove bursts, in case after case, the fatal burn injuries were on the back and not on the front of the torso (which ought to have been the case had the stove burst while the victim was cooking). What emerged was a horrifying pattern that in most cases, the victim was set on fire from behind, as she was crouching over the stove.

The pattern of covering up these horrific murders, was also corroborated by our interviews and discussions with survivors. We also discovered that while the Magistrates were tasked with the job of conducting inquests, there were no rules guiding how inquests were to be done! Therefore, the standard format mechanically filled up by the police had, by dint of practice, obtained the force of law.

We therefore set upon drafting rules for inquests, drawing liberally from the police manual. Thus, the magistrate was tasked to visit the site, check whether vital pieces of evidence were being collected and so on.

When we presented these draft rules to the government, there was stiff resistance from the police, and indifference from the Home Department. However, a few good police officers saw the sense in what we were doing and finally, the inquest rules were issued.

Later on, when both Renuka Viswanathan and I were posted in Delhi, she put pressure through political sources (Sonia Gandhi, to be precise) to have these rules sent as guidelines to all States. I believe that was done.

Now, if one were to follow the same strategy in the case of rape, it would make sense to have some form of oversight over the police by the executive magistracy, in such cases as well. However, there is no handle as far as I know, similar to Section 174, which is what we used to ensure more rigorous oversight in domestic violence cases.

One will have to think through the process, but in any case, I do believe that the inquest rules that we pushed two decades back, might have some good practices on investigation that might be useful to improve the rigor of rape investigations as well.

Yet, is that enough? Not by a long shot, as shown by the conclusions of a study by this student, Madhumita Pandey. Rapists are manufactured, not born, by a conservative society that treats women as property and not people.

Therefore, I think finding an effective answer to rape, reduce and eventually eliminate this reprehensible crime, depends not on the adoption of retributive forms of punishment. It has to comprise of an entire set of actions, beginning with our education system, our social system that still segregates men and women, our cultural practices that reinforce outdated notions about women needing ‘protection’ from men, our economic injustices where women are treated as second class citizens at the workplace and paid much less than their male counterparts and then, finally, improvements in police investigation processes so that more offenders are brought to book.

Capital punishment of rapists is like slapping mosquitoes, but not draining the gutters where they breed.

Over the past few days, Renuka and I have been putting together some material on ‘corruption free police stations’, which we will push as a political statement of intent.

We would like to do something similar for tackling rape as well.

Your suggestions are welcome.

Report by Raghunandan Tr

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