The rape incident of a 23 year old student (Amanat, as the media has christened her) and the physical mutilation of both Amanat and her friend have once again exposed the underbelly of the nation’s capital. One among the many rapes to be reported in the city’s newspapers (three more reported from the city post this incident less than a week back!), this case was different only in the fact that it caught the imagination of the public. Social media was leveraged to spread the anger far and wide, public gatherings were organized all over the country and a lot of words were spoken.
The public rage since then has turned wild. On day 1 the large protest marches ran over the security barricades at the Home Minister’s residence. On day three, it escalated to Raisina Hill. Any person mildly active on Facebook could tell you what the country wanted – for the accused to be hanged to death! Or if given a choice, people would have them castrated, bobbitized, flogged and publicly stoned to death.
Lots and lots of young, educated Indians wish exactly that for the accused. And I write, hoping to provide a balanced perspective to the entire episode that has gripped this nation. I write to point out the most obvious legal hurdles in granting a death sentence to the accused.
At the outset, I agree that the incident this time around was gruesome. And it deserves a stringent punishment. But I disagree with the few who say that an example should be made out of these culprits. I disagree because I fail to see how this act is any more gruesome than that landlord who raped a minor, or the father and stepfather who alternately raped their daughter. All of this in the past week. Also, it is a statistically proven fact that making murders an offence worthy of capital punishment has not in the slightest affected their rates. Legal opinion is divided on how effective a change in law would be for tackling incidents of rape.
As the law in India stands today, rapes are bailable. And they never warrant a capital punishment. There is a loud clamour for changing these ‘archaic’ laws and there are reasons why the legislators haven’s sprung into action yet.
A grossly under-reported fact is that rape laws (much like dowry laws) are amongst the most misused laws in India. Section 114A of the Indian Evidence Act states “when sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent” which in simpler words means that if a male has sex with female, she can file a rape case against him even if the act was consensual. The wordings of the laws have been often misused (or so is popular opinion, the law itself stands). The most common scenario would be one where the woman wishes to marry her lover post coitus and upon refusal, files a case of rape against him. The Supreme Court made the matter slightly more complicated by passing an order that ‘sex with the promise of marriage amounts to rape’.
Now picture this- a hot blooded India demands a change in laws, making rape non-bailable and worthy of capital punishment. The law is misused, even if by a minority (though the numbers are debatable) leading to the chargesheet being filed against an innocent. The person is slapped with a non-bailable arrest warrant and suffers in jail, at the mercy of our over-burdened, and hence slow, judicial process. The capital punishment clause can mean that the innocent could face a severe penalty for no fault of his bacause the wordings of 114A make it almost impossible to prove innocence.
We must not forget that the fundamentals of justice stress more that an innocent man should not hang rather than making all the guilty suffer. Hence, innocent until proven guilty! This is where it becomes so important that we treat laws with utmost care. Each word in an amendment must be carefully scrutinized for what it implies and what loopholes it leaves behind. It is all very well for the masses to shout “Hang the rapist” but it would be wiser for the educated to analyse why our laws say what they do.
Also, there is a fine line between empowering women and decapitating men. Though we feel the need to bring women up to par, it does not mean it shall be at the cost of men. The idea is not to tilt the scales, it is to balance it!
I would like to end by stating that I am not a law student and am not aware of the details behind all of India’s laws. However, my article is based on statements from the Indian Penal Code available on the internet and I assumed it to be wholesome. My intent behind this article was to bring a sense of sanity to this whole outrage that the nation feels. We must continue our fight against rapists, make our streets safer, give women their rights, and all that while not not getting emotionally blinded.
Arnav Das
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