Has India failed its women?

Not time to celebrate, it’s murder of our conscience

The public shouldn’t cheer the encounter death of the rapists and killers of Disha. In 2012, the country erupted in anger at the ghastly Nirbhaya rape and murder in New Delhi. We made a host of changes to our penal laws and wanted our women to feel secure on the streets and in our homes. Last week brought a grim reminder that barely anything has changed on the ground and that whatever severe punishment we brought in our rape laws in 2013 was practically useless and ineffective.  Dr. Disha was brutally raped and murdered in Hyderabad. Within the next few days, India witnessed, as usual, many more ghastly cases of rape coupled with torture, burning or murder.

Unlike 2012, this time, the public got to see and hear the last few moments of Dr. Disha and so, the public anguish, rage and helplessness only intensified. Before the 2012 Nirbhaya incident, the maximum punishment for rape was life imprisonment; that is, life in prison for the remainder of one’s natural life. After the Nirbhaya incident, we enhanced that punishment to death of the rapist in cases where the victim falls into a persistent vegetative state or dies as a result of rape. The most stringent punishment that could be awarded under our system of laws is a death penalty and we already have it for rapists in some circumstances. So, we had reached a tipping point in so far as punishment for rape is concerned. And, the barbaric manner of inflicting punishment of death upon a rape accused such as public flogging, lynching or stoning is not open to us because of the nature of our Constitution.

Still, whatever be our law or judicial procedure, one has to acknowledge the public impatience with our legal processes; so many people had publicly protested to ask the police to shoot and kill the rape accused in the Dr. Disha case without waiting for a trial or due process. Also, our parliamentarians who make our laws, expressed a similar preference for lynching the rape accused – and thereby, displaying their dangerous ignorance of our system of laws or the Constitution. The rapists and killers of Dr. Disha deserved the death penalty, and one would have expected them to receive just that from the judicial system.

Nevertheless, what the public apparently wanted was granted by the police on Friday. The Cyberabad police claim that all the four accused were killed in the early hours of Friday at the same spot where they were alleged to have raped and murdered  Dr. Disha.

It is fair to say that large sections of the population have expressed gratitude to the police for eliminating those alleged rapists and killers of Dr. Disha. However, I hate to say that the public is seriously misguided here. Still, I must say it. The explanation by the police about how the encounter took place leaves too many questions unanswered.

It is an accepted police practice in cases of rape or murder for the police to take the accused to the scene of the crime in the hope of gathering more information about the commission of the crime. However, such visits are generally done during the day. If we assume that the police here did not want to visit the scene of crime during the day in the fear of angry mob gathering at the scene and possibly resorting to public lynching of the accused, it would mean that the police cared enough about the life of the accused. If so, why could not the police factor in the possibility that in the dead of the night, the accused would try to beat up the police and force the police to fire at them? You see, things do not connect well here. And, such spot mahazars are invariably video recorded. Where is the video, then? If the police chose not to record this specific spot mahazar, who decided or directed that way and why? This was a case that had generated national attention and outrage. Also, a large and open area cannot be satisfactorily inspected in the night for the purpose of a mahazar unless it is substantially illuminated and if it were so illuminated, it was bound to garner the attention of people close by and defeat the very purpose of taking the accused there in the night.

Similarly, an illuminated surrounding which was so essential to the work at hand also punctures the theory of the police that they had to shoot at the vitals of the accused and could not aim at their leg or lower part of the body of the accused; there should have been enough light beams there. And, none of the accused had any weapon or dangerous object with him as they were already in police custody and their possessions were removed from them. If you think about it, four accused – whether separated or standing together - simultaneously delivering mortal fear to the police in such a scenario as to create gross fear in the gun-toting policemen to fire at those accused appears suspect. This incident deserves an expeditious investigation.

It is generally thought that in nearly 2% of serious crimes, the police misidentify the accused and put them on trial. In this encounter, the public has already decided that the police had nabbed the true suspects. Even in countries that claim to conduct their judicial trials with extraordinary care, nearly 3% of the convicts in murder cases are released several decades after serving in prison on evidence emerging that the police had caught and that the judicial system had convicted an innocent person.

We are aware that the most stringent punishment for rape has not deterred rapists. On average, the police commence the investigation of nearly 50,000 rape cases every year in India. The conviction in rape cases stands at a mere 32%. Let’s take another metric here: Encounter killings and torture killings by the police. Experts appointed by the United

Nations and our own National Human Rights Commission have frequently expressed shock at the lawlessness exhibited by our police force and the extremely low rate of conviction for such extrajudicial killings. We cannot possibly theorise that when rapists have no fear of such severe punishment for rape, our policemen would somehow fear severe punishment in the lawbook for extrajudicial killings when the conviction thereof is practically non-existent.

In our pursuit of swift justice, we should not lose sight of the bigger picture about what needs to be done to curb the rape and death of our womenfolk. Wanting to reform the rape scenario in our country while remaining indifferent to whom we elect come election day, is as nicely accomplished as preparing a healthy meal with putrefying meat or rotting vegetables. We barely pay any attention to how our police are appointed and to the quality of their work. Of course, the public cannot be expected to engage in monitoring the administration or the police on a daily or even a recurring basis; the reason why we elect our politicians is to let them do it for us. Still, so many of us cast our vote and elect our lawmakers with barely any thought about whether they even possess a minimal degree of integrity and honesty to be in public service.

Countries like Saudi Arabia and North Korea swiftly and publicly execute persons they claim to have committed various crimes. If you really think about it, you will see that such executions, had they only been a deterrent, should have been noticed less often. However, that’s not the case at all. Those countries frequently showcase such public executions and thereby, themselves dispel the myth that such executions even serve the purpose of being a deterrent. Frequently, butchering people publicly on the pretext that it deters crime is a self-contradiction; had there been enough of a deterrent, such executions  would not be so frequent.   

In the end, it is important for us to remember what Mahatma Gandhi and Swami Vivekananda emphasised a great deal during their lives – we should take moral responsibility for what happens around us as even though we might not bear any legal responsibility for it. The broader society cannot make any meaningful progress to protect our womenfolk unless we recognise that we are also morally responsible – through our individual and unexamined choices - for the continuing and unabated rape and murder of our womenfolk. Asking the police to summarily execute suspects is an irrevocable invitation to a disaster.
— K.V. Dhananjay is an Advocate, Supreme Court