The Nirbhaya Case and its Aftermath

The Nirbhaya case affects everyone, even those who don’t know about it. The gangrape of a barely middleclass 23 year-old led to the Verma Committee Report. One could say that all the players in this serial are involved in our future....it is certainly the last involvement of the patriarch Justice Verma with the Indian people.

This report could be seen in modern terms as a relationship between a rapist, a victim and the Law. If one intends to address rape within the bounds of our civilisation, one must first look at it generally, as an event that could happen to anyone within the food chain. For rape is invasion of another’s territory.

Quotation by feminist legal author Vasudha Dhagamwar:

“We find that in rape trials the woman’s evidence is invariably dismissed and she herself is found to be a consenting party if she wavers from her initial statement even by a hairs breadth. From one day to the next, in ordinary circumstances it is difficult to remember what one was wearing and yet when a woman undergoes so great a trauma as rape she is expected to remember every detail, every moment with photographic precision and clarity. It is almost as if the minute something so unspeakably terrifying and so totally unexpected as rape begins to happen to her, she is expected to find unusual mental and physical reserves to fight the rapist and have sufficient initiative to otherwise save herself. If the woman suffers from any other nonsexual trauma the court would expect her to be dazed, even catatonic. But not when she is raped. Not even when it’s a case of multiple rape.”

At any stage of life a human is weaker than someone else, as well as stronger than someone else....and can be invaded or conquered temporarily or permanently (Prosecution: “in rape, you destroy the very persona of the victim... but in this case the convicts brutalised her to such an extent .....cut open her digestive system from top to bottom like you split open a fruit.”) Rape is an act that can lead to many kinds of death, physical, mental and spiritual. For this reason alone it can be classified as deserving of the death penalty.

The conception of a child is dependent on its mother and father, its gestation is dependent on the mother and her environment. At birth one is at the mercy of the doctor and his environment. As the human grows up, they become subject to the food chain that influences them in multiple ways.... adult sexuality of a human spans every human emotion. Where does the Law come into one’s life? An Indian person can be conceived and born without the law getting involved. Some live their entire life without the law. For most people Law is merely an attempt of the collective to police its membership.

The identity of any Indian human is still based on “father’s name” or “mother’s name”. We all know how much variation is involved within this generalisation. The legal mother/father may have nothing to do with the actual mother/father and emotions cannot be legalised no matter what the effort behind it. in a case such as the Nirbhaya case, the legal ramifications are paramount, and we can never know this case from another point of view as the central individual is dead. Those who are living are free to construct any reality they choose. Therefore the caretakers of the law are “misguided” in their actions, because all that matters to them is to produce yet another membership clause for policing human behavior within society. No one cares what humans do privately to affirm their own identities. Everyone knows that private human behavior is very different from what it is supposed to be.... it is shocking, full of twists and turns, extreme and unpredictable to say the least. All humans are tied to one another, no matter how they behave at a traffic light.

One must look at the Nirbhaya situation and its aftermath in this light.

“Ownership” of a human body extends beyond the individual to its legal next of kin. I am always vulnerable to those that own my body. I may run away as far as I can but the law can always reach me. I may never speak or interact with my “owner” for my entire life.....yet the law will give my body to him/her. All medical decisions, all institutional decisions will be deferred to this person, no matter what that relationship may be. Some of us spend our entire lives making sure that person comes nowhere near us. Some of us think that their legal guardian is the first “love” and that they owe them food, clothing, shelter, loyalty, fidelity. Hence the LAW is central to how people think publicly, no matter what their private experience may be.

Till today Indian LAW is based on a patriarchal module.....and culture is based on a matriarchal module. Those that are able to combine these two modules harmoniously can benefit to the maximum from the Law. But for most of us, the development of our minds is fraught with confusion and contradiction when faced with the Law.

In Rajesh Talwars book the gap between theory and law has been highlighted. He says:

“as has been the case with all my publications, legal or otherwise, i wished to write something that would resonate with a more wider audience concerned with issues affecting changing India, and not have the discussions of the proposals confined to an incestuous coterie of legally qualified individuals and luminaries. I have frequently referred to new reports on rape, child rape and other related issues to give this book a more contemporary feel.”

Rajesh Talwar gave up the practice of Criminal Law, and entered the domain of Human Rights while working with the UN.

“....several of my class fellows at the Faculty of Law, Delhi University are now sitting judges at various high courts, a couple are even in line for being considered for elevation to the highest court of the land. When I meet them sometimes during my trips to India, we speak of issues concerning rule of law and justice, they confess to me privately that the judicial system is in need of a very serious overhaul. But they, as sitting members of the judiciary, are not themselves in a position to become crusaders for this cause.”

Nirbhaya: story of my life is about a barely-middleclass 23yr old girl who embodied the dreams of her family by becoming a first-generation paramedical professional. Her rapists were a fruit seller, a gym-instructor, a bus driver, a student, an unemployed man—from different parts of the country. Two of them were siblings.

The Verma Committee Report resulted in the Criminal Law (Amendment) Act 2013, with the changes being:

1) In favour of the Death Penalty: where the victim is left in a vegetative state and where there is a repeat offence.

2) The definition of rape being considerably widened.

RajeshTalwar attempts to broaden the dimensions of the case by quoting an expert:

“Kishwar Desai writes that gangrape has to do with male-bonding in India.....gangrape denotes a sharing of the spoils, a criminal male bondage that goes beyond the hours spent together in any form of recreation.... recent cases show that it is even regarded as entertainment, with rape videos being shown on the internet.”

He also says:

Though the Verma Report defines rape as “regardless of gender” the law has not seemed it fit to include this vision. If it did, then it would have to address cancer-cells like 377 which has recently been reversed.

The question arises: Can a woman commit rape or gangrape?

“Abetment to” or “accessory to” does not define the orders of a general to his juniors or soldiers.

The Marital rape law definition has given protection to wives living separately. He quotes a colleague:

“A woman’s control over her own body is still being haggled about. Existing laws on property fidelity ownership and rental are all tilted in favour of patriarchy. One should discuss those others who have been equally disadvantaged through the laws of patriarchy: those who ‘disobey’ the law of family structure and attempt power through toppling the status quo, privately or publicly, personally or institutionally.”

According to the author, the positive results of the Verma Report are:

• Acknowledgment of new crimes against women (apart from rape)
• Acknowledgement of insensitive questioning by counsel (which is a worldwide phenomenon)
• Evidence of sexual history not being necessary
• The rape-victims evidence is now examination-in-chief applicable to minors
• The victim can kill to protect herself 

According to the author the failures of this report are:

• Not addressing homosexual rape
• Not addressing torture, gay rights and section 377 IPC
• That those below 18 are treated as statutory rape
• That now homosexual rape of an adult will cease to exist under sec377.
• Minors will have protection under the law, but not adults.

There are some perplexing details:

On naming and shaming the child-rapist and making a public database, he reveals:

The new law defines a child as “any person below 18.” Rape is defined as penetrative sexual assault, but a woman cannot be guilty of it. “....therefore if a woman were to apply her mouth to the penis of a child, she would not be guilty of an offence under the law.”

The use of the term “he” would seem to clearly indicate that the law here envisages only the prosecution of men... it would be far better if here too a gender-neutral expression had been used. “... it seems that (the report is) over-focussed on women as victims, and not as a potential sex-crime perpetrators...our legislators did not wish to grant the latter possibility.”

Re child-rape, and insistence on non-disclosure of the identity of the child, Rajesh Talwar adds his own views:

“there are crazy people around the world....perverts who get together to promote their own agenda, the Rene Guyon Society, Paedophile Information Exchange (PIE), North American Man/Boy Love Association (NAMBLA), who have recorded case histories that have apparently benefitted the child on account of sexual contact with an adult. Such arguments are however not convincing and clearly appear perverse when we consider that sexual behaviour with children, even when it is not violent, can cause lasting damage to the victim. Apart from immediate trauma to the victims, sex crimes against children can lead to long term consequences, which may include disturbed relations with the other sex.”

Those who deal with children intimately on a daily basis know that children have to be “taught” social behaviour repeatedly, indeed policed 24x7 until they understand that touching oneself or another has multiple ramifications. Every culture has different rules for public behaviour and every culture has different boundaries of private behaviour. Who decides the rules for whom? Who enforces these rules? All cultural rules are enforced through the matriarchy, even when they fire from the shoulder of the patriarch. It is up to women to shelter or protect a young cub, at least until it is made ready to hunt or roam free. Some cubs have to be protected all their lives from others, if only because they would not last a day without help. Anyone who is conversant with internet porn has over a hundred sexual preferences as options, and the news has been faithful in reporting many paraphilia and club-memberships for those who have different tastes. It is a mistake to consider a child as not having “preferences” or to consider one-self as removed from others propensities....one may enjoy watching others indulge in illegal activity but that does not absolve ones participation in it.

Children spend eighteen legal years exploring their own sexuality and discovering that of others. They learn that there are things one cannot do in public without getting caught. All kinds of ragging (including hazing and rape) take place within the home and in school. There is hope for a child in many ways under POCSO if the matter is made public.

New crimes against women have been defined: Stalking, throwing acid, disrobing a woman in public, sexual harassment, voyeurism, etc. Trafficking redefined for “person”

It is interesting to know the backdrop of this report:

The Verma Committee Report consisted of Chief Justice of India (Retd.) JS Verma, Justice (Retd.) Leila Seth, Former Solicitor General Gopal Subramaniam. That there was lack of support from government in terms of staff and infrastructure and that even getting a copy of the report costs 2000 rupees

Rajesh Talwar has some criticism of its presentation:

• that it has too lengthy an introduction
• that an Executive summary is required for anyone who doesn’t want to wade through it
• that the Interview with Trafficked Girl was very difficult to fathom due to bad Hindi
• that the English used was also difficult to decipher
• that the Four young boys interviewed with social workers present, was not clearly presented

Criticisms on addressing Marital Rape adequately:

• that (the report seems to say) you are married therefore you cannot be raped
• that (the report seems to say) you are in another relationship therefore you cannot be raped
• that KhapPanchayats +honourKillings have been noted as:
  
  “so-called Honour killing comes within the category of rarest of rare cases deserving death punishment”
• That ... “life” and “life imprisonment” should mean the same (earlier it meant 14 years only)

He also notes that Follow Up to passing a law is too weak. That a task force should be appointed to implement various laws (eg. to check if the law against tinted windows has been applied). That the Supreme Court has (through this report) pulled up its own members:

“for let’s face it, the judges are not completely innocent either. They are so busy cleaning the filth in the government backyard that they ignore the filth (read judicial arrears), which is accumulating in their own backyard. There are other issues as well — of judicial corruption, of acceptance of plum assignments post-retirement and so on.”

The judiciary in India is guilty of invading the territory that belongs more properly to the executive and legislature. Why should it be the business of the Supreme Court to provide guidelines on everything?

What’s not been accepted by the Government (although it has been recommended by the report):

Electoral Reform: persons disqualified by EC for offences relating to rape and/or cruelty towards women by her husband or relations. All numerous politicians across party lines have everything to gain from the status quo — i.e. an intolerably slow justice delivery system... and they have everything to lose from a swifter dispensation of justice.

Rajesh Talwar illustrates: “A lawyer colleague from Mumbai once told me that there is a difference between criminals in Mumbai and those in Lucknow. Mumbai criminals are professionals, they make a living out of crime, they don’t (like their northern counterparts) want to waste time eve-teasing women, stalking them or committing sexual offences.

...so these criminals, who make it to the position of a State MLA are part of the breed of ‘normal criminals’, not of the professional variety and it should surprise no one that many of them have crimes against women listed among the list of offences they may be proud to flaunt.”

To quote from the ECs report:

“The whole country is now experiencing serious concern over the antisocial and criminal elements entering the electoral arena. Even Parliament in the debates in 50 years of independence and the resolution passed in special session of Aug1997 had shown a great deal of concern about the increasing criminalisation of politics. It is widely believed that there is a growing nexus between the political parties and the antisocial elements which is leading to criminalisation of politics where the criminals themselves are now joining the election fray and often even getting elected in the process. Some of them have even adorned ministerial berths and thus lawbreakers have become lawmakers.”

Recommendations:

• Fastrack court
• Hierarchical delays should be removed
• Negotiating with political classes

What Verma Failed to Say:

No comment on insensitivity displayed by the supreme Court.

The attitude that: The girl was used to rape, it was a good or bad time for rape, the girl was not a virgin, etc etc.

That rape has now become the law on sexual assault without saying so, because (legally) sexual assault has now become a minor offense. The committee could have spent a few paragraphs emphasising the distinction between consensual homosexuality and homosexual rape.

That (through this report) the ground rules have also changed for offenders and victims. In the case of legal relationships like marriage or parenthood (or other guardians) the legal strategy has changed its terminology towards prosecution.

That in the case of false allegations, there is a need to balance the rights of the accused with those of the victim.

Delaying tactics by the accused:

In the Nirbhaya case the accused attempted to call CM Sheila Dixit, Dr Naresh Trehan, Mulayam Singh Yadav, Sharad Yadav, the president’s son, RSS supremo.

They also attempted to prove that the perpetrators were never at the scene of the crime

One lawyer wanted the trial to be held alternate days (as a delaying tactic)

The juvenile got away with minimum punishment for doing the maximum damage

It was a 237-page judgement

Why did judge Yogesh Khanna took nine months to deliver the verdict — 85 prosecution witnesses had to be called because two crimes were involved — rape and murder.... the sole eyewitness to the crime could not describe specifics, which had to be proved through forensics. Although the bus had been washed and thoroughly cleaned, the police pulled out the flooring of the bus to get samples of blood, semen, hair, etc.

The bite marks on the victims face matched with the teeth of the accused.

That the trial took 130 half days...the trial judge used to complete hearing of other cases in the morning and conducted the Nirbhaya case in the afternoon. That the prosecutor Dayan Krishnan did not charge anything for the nine months he worked on the case “I felt I owed a duty to society... I would surely not make money when I discharge my duty to society”.

What is the outcome of our maximum efforts to deal justice for Nirbhaya?

As the author sees it:

• The convicts have right to appeal, but sentence must be confirmed by the High Court. If the conviction is upheld, the accused will go to the Supreme Court. If they are rejected they can appeal again.
• They can appeal to the president of India for mercy
• If president rejects their appeal, they can go back to the Supreme Court.
• In the light that justice delayed is justice denied....

It is clear that Doing-the-Right-Thing is not the same as being seen-to-be-doing-the-right-thing.