Democracy involves subjecting ourselves to a difficult discipline. We are often tempted to equate democracy with the simple will of the majority. The problem with this was demonstrated in Athens, the birthplace of democracy, when a majority of citizens voted to execute Socrates. To guard against such miscarriages of justice the political thinker Montesquieu recommended separating the judiciary, the executive and the legislature, a principle incorporated into all modern democracies. What Montesquieu could not anticipate is the way media, especially social media, would come to dominate public opinion.
An independent judiciary is only one element in the configuration of principles required to protect citizens from the type of justice meted out to Socrates. Two equally important principles are ‘innocent until proven guilty’ and ‘guilt proven beyond a reasonable doubt'. Today the media and the public often act as judge, jury and executioner, much like the cat in Alice in Wonderland who sits in judgement over the mouse.
For example, much of the media projected the Talwars as guilty even before the trial in the Aarushi-Hemraj murder case began. As a result, a man attacked and injured Rajesh Talwar. This was a replay of the way Moninder Pandher, accused and later acquitted in the Nithari killings, was condemned by the media and attacked by a mob.
Likewise, in cases of alleged rape, until the facts are proven, dubbing the accused a ‘rapist’ and the complainant a ‘victim’, as the media routinely do, is wrong. This is particularly urgent in view of the draconian provisions of the Criminal Amendment Act, which allows the death sentence for a second rape conviction, and defines “a demand or request for sexual favours” as sexual harassment, punishable with rigorous imprisonment up to three years or fine or both. Asking a woman if you can hold her hand or kiss her is a request for a sexual favour. But until one takes the risk of requesting, how would one know whether the request is welcome or unwelcome?
“Making sexually coloured remarks” is punishable with imprisonment up to one year or fine or both. Either telling a woman she has nice legs or using a four-letter word could be considered a sexually coloured remark. Such language could make a woman feel uncomfortable but should it be punished with a year’s imprisonment?
The term ‘sexual favour’ is a Victorianism, revealing puritanical, anti-sex assumptions. This puritanism appears to be spreading worldwide, under the aegis of a certain type of feminism. At the American university where I currently teach, some feminists have tried to impose a conduct code on campus, using almost exactly the same language.
Second, the new law reverses the burden of proof, so that rather than being proven guilty, the defendant has to prove his innocence. The law states that once a sexual act is proved to have taken place (including if the man agrees it took place), the woman’s statement that she did not consent, unsupported by other evidence, is sufficient to convict the man of rape. Is it really impossible for any woman ever to make a false statement in such a matter, out of confusion (think Adela in EM Forster’s A Passage to India) or vindictiveness (say, if he promised marriage and backed out later) or if she is paid to do so?
Some may argue that if a person is guilty, why bother treating him as innocent until proven guilty, and why worry if he is convicted without proving the case beyond reasonable doubt. Why should we resist the temptation to ignore these two principles of justice? Because democracy and the protection it offers citizens is fragile, like many beautiful things. If today a guilty person is convicted in this way, tomorrow an innocent one could be convicted in the same way. And that innocent person could be you, or me.
Ruth Vanita is a feminist scholar and a co-founder of Manushi. The views expressed by the author are personal.