In the Indian Penal Code, the punishment for rape is now 10 years of imprisonment, even as it is a criminal offence and not a civil wrong
Dear Asha Devi,
This open letter is with reference to your fight for justice for your daughter. Your refusal to accept that tragedy as a foretold destiny of free women and the grit and steadfastness that you have shown in the legal war that followed no doubt comes at a personal cost. However, I am writing to inform you that a cross-section of people has begun to find your desire to see her attackers executed unseemly.
Why? There are many strands of opinion and lines of reasoning. Not excluding a snide comment about your family receiving Rs 4 crores in compensation for her passing away. You may be aware that there is a debate going on as to whether the death penalty itself should be abolished. Its supporters hold this contention to be against the principles of natural justice, of which the statute book is but a formal, democratic representation. The Supreme Court, in its wisdom, did deem your daughter’s case “rarest of rare”, and, accordingly, worthy of the sentence.
Drowned out by this babel and perhaps by the subjectivity of your grief, nonetheless, is a very sinister momentum. Exemplified in the latest amendment to the Pocso Act, it favours awarding the capital punishment for rape. But in the world of ideas, a compelling opinion opposite to it is gaining ground. That the award of the death penalty for rape perpetuates rape culture which in the first place causes rape. Simply by pandering to the false notion that a rape victim, whether a victim of sexual violence or gendered violence, as in your daughter’s case, is somehow damaged permanently, and becomes a “zinda laash”, as former Union minister Sushma Swaraj had articulated.
In her 2018 essay, Germaine Greer argues for lighter punishment (a tattoo or community service) for rapists when there is little physical injury to the victim. Greer separates sleaze from assault in the act of rape. Of course, these overlap in actual life, but instances do occur wherein the victim is coerced into compliance; on the other hand, there are also far too many instances wherein the assault is impersonal and by all accounts a class, caste and gender hate crime. Both Greer and Nivedita Menon (in 2014) have posited that sexual violence without permanent injury to the victim could be considered a civil wrong.
In the Indian Penal Code, the quotidian punishment for rape was, until recently, seven years of imprisonment, upgraded only as late as 2018 to 10 years, even as it is a criminal offence and not a civil wrong.
What is your view? Has it changed over the years? I am interested, as a socially-committed individual in your age cohort.
Have you noticed, for instance, that those criticising you for demanding the death penalty or for cheering the encounter killings in Hyderabad also believe that you have conflated justice with patriarchal “honour”? They accuse you of seeing in your daughter's assault a violation of this dubious “honour” or clan exceptionalism. I, for one, do not agree with them.
I clearly see that you and your husband, belonging as you do to the great Indian middle class that determines the country's societal mores, represent a change in Indian mindsets. Even today, few families support their daughters if raped, believing that they have caused their own and the family’s falsely-defined honour damage. They blame the victim. That’s why a majority of Indian women still continue to live with constant “rape anxiety” and fear psychosis. But you did not blame the victim, and not only because she was your child.
This was proved beyond doubt when both you and Badrinath Singh, your husband, on separate occasions, asked the media to mention her identity. Her name was published by the Daily Mirror in the UK a month after her death. Badrinath had said: “Let it be known that my daughter's name was Jyoti Singh Pandey.” “I disclosed the name of my daughter. She was a victim. She did not commit any crime. Why should we suppress her details? They, who gangraped and murdered her, should hide their names,” you are quoted to have said.
Identity is real, and the name of a person is its first building block. Your daughter had done nothing to deserve being denied her identity. In a form of “corrective rape”, she had, on the other hand, been targeted for being vivacious and outstanding, and for exercising her freedom of movement, a fundamental right guaranteed to her by the Constitution that is equally a basic competence of young adults. As a society, we have the right to know in the case of a crime of such magnitude who the victim was who died.
Yet we, the Indian media, pussyfooted around the issue. We were amiss in not proactively seeking permission from you under Section 228A of the Indian Penal Code to disclose her name. As per Subsection 2 of Section 228A, IPC, we can name her provided: (a) the police officer conducting the investigation authorises it in good faith [not applicable], (b) the survivor allows it in writing [not applicable], or (c) if the victim is dead, minor or of unsound mind, her next of kin authorises it in writing to any recognised organisation [applicable]. But we have chosen to debate about whether to call a sufferer of rape a “victim” or a “survivor” instead. As a result, when the US Secretary of State’s International Women of Courage Award was conferred, her honour citation mentioned her as an ambiguous “Nirbhaya”.
This is despite scores of sexual and gendered violence victims having been identified by the media before her and afterwards, without harmful consequences to them or their families. We all know of Mukhtaran Mai (Pakistan), Bhanwari Devi, Bilkis Bano, Sunitha Krishnan, Suzette Jordan, Soni Sori, Nadia Murad (Iraq), Delta Meghwal, Nusrat Jahan Rafi (Bangladesh), Priyadarshini Mattoo, Geeta Chopra and Sohaila Abdulali. Both you and I have witnessed the #MeTooIndia movement.
We cannot argue against the death penalty for rape and yet favour blanket suppression of the rape victim's identity in the same breath. I guess it is now my turn as an Indian journalist to apologise even though my own efforts in this direction before have either proved costly or been cancelled.
It is high time we brought clarity to both these conversations and did right by our society and citizens.