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My psychology dissertation is done. If all goes well, I should have my second Masters early next year. That also explains my absence (in case you noticed :) ). I did poke my head out now and then but given the crap that was flying around, I receded like a tortoise.

We are all furious about Nirbhaya verdict with regard to the “minor” being let off. Emotions apart, this was an expected verdict. Firstly, the courts can give a judgement only within the framework of the penal codes. For example, a judge cannot say, according to this IPC, your punishment is too less...so I will give you my own punishment. If laws are inadequate and they need amendment, it has to be passed in the Parliament. And therein lies the problem.  

Although Jyoti Singh’s case has been exceptional in its bestial nature, the stomach-churning truth is there are cases of comparable cruelty which never make it to the public and political discourse. The point is, sexual violence is always simmering in our society; it has been this way for ages. Yet, our elected representatives never felt the need or urgency to initiate amendments to update our laws – it was always seen as a non-priority. It would appear that every small milestone that is achieved w.r.t. fundamental human rights of women as citizens is preceded by a violent crime. Today if working women are protected against sexual harassment, they owe their thanks to Bhanwari Devi who was brutally gang-raped for stopping a child-marriage. She knocked on Rajasthan High Court for justice, but the rapists were acquitted. This resulted in Vishaka   an umbrella of women’s groups – to file a PIL in the Supreme Court, demanding fundamental human rights  of working women - the right to work with dignity and equality.  This was not in the so-called distant 50s/60s/70s past. This was as recently as 1997. Yes. 50 years after Independence, we were still screaming to be treated with dignity. The story does not end there. The Supreme Court formulated the guidelines of defining sexual harassment of working women. This is known as the Vishaka Guidelines. But then, guidelines cannot become the law. For this, the Parliament must enact the law. A Bill has to be proposed, discussed and debated upon. When both the Houses of Parliament pass the bill, it goes to the President for approval. Once the President approves, the bill is deemed as an Act. What started as guidelines in 1997, finally became an Act in 2013. 16 years. That is the priority accorded to most basic human issues.

Likewise, in Jyoti’s case, it took hundreds of thousands to storm the streets for the GoI to sit up and take notice that sexual violence in public place is a perpetually escalating situation. This time, the government was dealing with a different generation – a very aware, a very vocal populace. We did not have to wait for 16 years. The Criminal Law (Amendment) Act was finally passed in 2013 and was based on the recommendations made by Justice Verma. This act incorporated changes to Sections 370 and 375 pertaining to sexual harassment and rape, and also included to new sections to cover crimes such as acid attacks, stalking etc. The punishment for rape can range between 7 years and life imprisonment depending on the "severity" of the crime. I am not sure if there is any definition of “aggravating situations” pertaining to rape that can help the prosecution push for life sentence. In other words, this classification of rape based on perceived severity is itself defeating. There is a clause that says if the rape resulted in death or disabled the victim (“vegetative state”) then it is punishable by life imprisonment. But this also means, if you are “just raped”, then the perpetrator can get 7 years and a fine. 7 years is nothing; 7 years is a blink of an eye. Before you know it, the rapist is back on the street, more hardened, more embittered, more violent. So, unwittingly, they have introduced degrees of rape. 

Also, in what I consider a severe blow to feminism, these laws have been framed keeping only women victims in mind. The ugly truth is boys, men and minority genders also face traumatising sexual violence. It may not be in the public sphere as with women, but within the confines of homes, schools and other institutions, the levels of such sexual violence could be more alarming than we perceive. Indeed men and other genders virtually have no protection from the law when it comes to rape.

Coming to the Juvenile law; we once again saw the myopic side of the whole debate. The government wanted to reduce the age to be deemed as juvenile from 18 to 16, so that in this particular case, the said “minor” rapist can be tried as an adult. Tomorrow what if a fifteen-year-old commits an “adult” crime? In reality, the issue is not about reducing the age of juvenile conviction from 18 to 16: the issue is how to handle juveniles who commit violent crimes that are usually considered “adult” crimes? Our laws are ancient and still have a Victorian slant on most social issues, including homosexuality, sexuality of women etc., which works well with our inherent patriarchal psyche. Our lazy-ass politicians have done little to thaw the law from its deep-freeze and actually make it work according to the dynamics of the modern society. So we are stuck with interpretations that assume it is not possible for a “minor” to commit a violent crime.

In the James Bulgar case in the UK, the offenders were two boys, just about ten years old. These boys perpetrated a crime of such depravity that it shook the entire system – just as the Nirbhaya case electrocuted us. The difference is, in the UK, the boys were tried as adults. Inputs were taken from forensic psychiatrists as to whether the boys knew right from wrong. Indeed, at 10, one would have developed a moral compass, and the entire case facts proved the crime had been premeditated. They boys were sentenced to custody for fifteen years and thereafter, released on monitored parole. However, one of them was back in prison: he was involved in child pornography. This, despite years of intense counselling, and despite being declared as "not a significant threat to society".

The point is, predicting recidivism especially in rapists is a tricky business. How likely is it for a rapist to reoffend? It depends on a number of factors, including family history, substance abuse etc.  More importantly, if the individual has criminal proclivity wired in his brain, he will reoffend. In the Nirbhaya case, the young man should have been tried as an adult. He was well aware of his actions; he willfully participated in the crime. I don’t know what sort of counselling he underwent in the juvenile home – at this point in time, I find the notion laughable. He was six months shy of being called an “adult” at the time of the crime. He’d known the other rapists for only 24 hours. And yet, he aided, abetted and perpetrated the most depraved crime. If this does not indicate psychopathy, then I don’t know what does. No amount of counselling or therapy will work, and my bet is, he will reoffend in no time. It is a known fact that birth certificate and school marks-card record wrong birth dates in many cases. The JJB refused permission to the police to ascertain this man’s age through forensic methods. So, we will never know beyond doubt if this man was really a “child” as they refer to him (makes me vomit).  The JJB gave him a three-year sentence, of which he had already served 8 months in custody. Indeed, we won’t know where he’ll relocate to. We don’t know his face, we’ve not heard his voice. We’ve offered him fresh victims on a platter. 

It is true that laws cannot be applied in retrospect, but at least, we could have had a safeguard for the future. We’ve not seen the last of such crimes for sure.

Meanwhile we continue to live like xerophytes. Just as these plants have adapted themselves to live in hostile conditions like deserts and frigid landscapes, we too have adapted ourselves to live through the shit-fest we are subjected to every now and then.

One thing is for certain with this verdict - Jyothi Singh's blood is smeared on many more hands.

 © Sumana Khan - 2015


  1. I once heard a learned old man say that no other animal spends as much time as a child as we humans do. Most animals are on their own in months and few take a year or two.

    Nirbhaya or not, Juvenile law or not, we should seriously investigate what is the right time to get out of parents' shadow and be held accountable.


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