In a crowded Mumbai courtroom on April 4, 2014, sessions judge Shalini Phansalkar made history by sentencing three men to the gallows for the gruesome gang-rape of a young photojournalist in the abandoned Shakti Mills campus last August. For the first time in Indian jurisprudence, the death penalty was awarded for a rape, which did not result in the demise of the rape survivor. Even though the survivor lives, the judge declared that “society is yet to recover from the aftermath of the shock”. She described the crime as “barbaric” and “inhuman”, deserving capital punishment because it “was beyond toleration and understanding of the society”.
Despite the exemplary speed with which the police investigation into the gang-rapes of the photojournalist and telephone operator was completed and the trial disposed, many feminist human rights workers are dismayed by the sentence. An established principle of justice is that punishment meted out must be proportionate to the crime. Accordingly even if the death penalty is to remain in our statutes, this should be awarded only for crimes that cause death, and that too in “rarest of the rare” cases.
But in the two Shakti Mills gang-rapes, the victims did not die. Still the public prosecutor argued that gang-rape leaves a permanent mental scar on the victim. “It not only attacks her body but also her prestige, mind, chastity and self-honour. The physical injuries will be healed but the other injuries will not heal till she dies,” adding that “survival without prestige, love, affection and honour is no survival at all. Such loss is more painful than death.” The view of the judge that rape is not just a personal attack on a woman but a societal hurt and of the prosecutor that rape constitutes an attack not just on a woman’s body but her honour which is worse than death are regressively patriarchal. Effectively they stigmatise and punish a woman for grave hurt to which she was subject, suggesting that she loses dignity and family and social honour irrevocably after being raped.
Flavia Agnes of Majlis, who has supported innumerable rape survivors, declares that a woman who survives rape is not a “zinda laash” or a “living corpse”. as decreed by Indian tradition. Majlis lawyer Persis Sidhwa commented to a newspaper that such ideas only diminish “the value of girls”. The photojournalist and telephone operator, she observes, “are extremely strong women. They have been through a lot and will eventually move on… (and) make something great out of their lives. What the five men did to them cannot define their entire lives.”
I recall the luminous testimony of writer Sohaila Abdulali in the The New York Times after unprecedented outrage followed the December 2012 gang-rape and death of a paramedical student in Delhi on December 16, 2012. She recounts how 32 years earlier she was gang-raped by four armed men. “At 17, I was just a child,” she writes. “Life rewarded me richly for surviving. I stumbled home, wounded and traumatised, to a fabulous family. With them on my side, so much came my way. I found true love. I wrote books. I saw a kangaroo in the wild. I caught buses and missed trains. I had a shining child. The century changed. My first gray hair appeared.”
“Rape is horrible,” she writes. “But it is not horrible for all the reasons that have been drilled into the heads of Indian women. It is horrible because you are violated, you are scared, someone else takes control of your body and hurts you in the most intimate way. It is not horrible because you lose your ‘virtue’. If we take honour out of the equation, rape will still be horrible, but it will be a personal, and not a societal, horror. We will be able to give women who have been assaulted what they truly need: not a load of rubbish about how they should feel guilty or ashamed, but empathy for going through a terrible trauma.”
Middle-class India is in rage today against rape and crimes targeting women. This is welcome, except that this rage is selective. We stir only when the victims of violence are people like us, and the perpetrators poor and dispossessed. We are indifferent, for instance, to recent hate-rapes in Muzaffarnagar, daily brutal violations of homeless women forced to sleep on city streets, and of low-caste impoverished women in farms and sweat-shops; we are also silent about 90 per cent rapes that happen within homes by relatives and friends.
For those crimes which outrage us, we will settle for nothing less than death by hanging. We need laws that punish and deter crimes against women. We need a police which is fair, and courts which dispense real and timely justice. However, violence will not ebb with spurts of selective extreme penalties, but with assured, consistent and measured justice for all people. Violence will reduce if we support survivors with empathy, not burden them with guilt for the dire injury they have suffered; and when we encourage them to live, fight, heal and overcome.
And ultimately violence will end if the future could carry hope not just for some but for all people.
