From the 1983 judgment of the Supreme Court in Mathura’s case to the 2017 judgment in the December 16 Delhi gang rape case, the issue of absence or presence of physical brutality as a concomitant element of rape, continues to lurk in the judicial mind while determining guilt and quantum of sentencing.
Both cases sparked campaigns by the women’s movement for changes in the law to reflect women’s actual experience of sexual violence, culminating in the Criminal Law Amendment Act, 2013.
The horrific injuries in the 2012 gang rape played a central role in galvanising the high decibel public condemnation of the crime. In this judgment, the brutality and severity of the injuries inflicted by the accused finds repeated echo, and is cited as the overwhelming reason for the court to call this the “rarest of rare” case. To award the death sentence, the apex court falls back on the “tsunami” of shock caused to the “collective conscience”.
Over the past three decades, due to the consistent efforts of the women’s movement there is a grudging understanding of the absolute right of a woman over her body. Even within the courtroom, jurisprudence is developing that a victim of rape should not be viewed with suspicion; most rapes do not leave marks of physical injury; and, by its inherent nature this crime often leaves behind no “evidence” apart from the victim’s testimony.
With brutality and injuries once again taking centre stage, there is an apprehension that even as the din of ‘zero tolerance for sexual violence’ reaches a crescendo, rape has become a spectacle, as an outrage of the “collective conscience”, where the impact of rape is measured by the physical injury accompanying rape; where the abhorrence to rape is calibrated by who the perpetrator is and who the victim is; thus routinely sidelining the understanding of sexual violence as an exercise of power and entitlement.
Ironically, there is a simultaneous backlash which actively feeds the spectre of “false rape cases”, where there is a perceived social reality of women as scheming liars, and a manipulative representation of the law being “draconian”, and rape prosecutions and convictions being “easy”.
It has been argued that the determinative test of “rarest of rare” is inherently arbitrary. When the same is premised on the outrage of the “collective conscience”, it will not only be selective and subjective, but also necessarily majoritarian. The Constitution and the apex court are tasked with safeguarding against a coup d’etat by dominant tendencies. If “collective conscience” is invoked as a reasonable ground, how will communal attacks, fake encounters, public lynching of Dalits and now Muslims, all enjoying social endorsement, be held unlawful?
Uncannily, a day prior to the court’s 430-page judgment, the Bombay High Court delivered a judgment, also on gang rape and murder, in the case of Jaswantbhai Chaturbhai Nai & Ors v State of Gujarat (Bilkis Bano case), where 11 people were convicted for life imprisonment. While the macabre details of the Delhi case are known to all, few are familiar with the fact that 15 years ago, in 2002 in Gujarat, 11 men murdered 14 members of Bilkis’s family, smashed her three-and-a-half-year-old daughter to death against a rock, killed a one-day-old baby, and gang raped a five-month pregnant Bilkis and other women of her family, who were fleeing the targeted violence unleashed against Muslims.
The court did not find any reason to disbelieve Bilkis’ testimony, and the absence of medical evidence to corroborate the gang rape, was rightly considered inconsequential for the conviction.
The verdict is also significant for it holds guilty five policemen who had intentionally refused to record in the FIR the names of the accused or the crime of gang rape as narrated by Bilkis. The two doctors who manipulated and suppressed evidence in the post mortems were also convicted. The high court held these acts of omission and commission as deliberate suppression of material facts by the police and doctors “with the intention to screen the accused from legal punishment”. This judgment marks an important jurisprudential recognition of institutional bias, thereby drawing a wedge in the State’s shielding of perpetrators of communal attacks.
Perhaps the mirror image of the “collective conscience” is “collective disbelief”, which sanctions sexual violence within the home; refuses to accept that ‘men like us’ routinely abuse office and position to commit sexual harassment and rape.
At the conclusion of the Delhi gang rape case we need to move away from ‘masculinist’ responses where death sentence is seen as just, towards ensuring that all forms of sexual violence are treated as a violation and all perpetrators are held accountable.
Vrinda Grover is a lawyer at Supreme Court of India
The views expressed are personal