Public outcry and protests in response to rape cases in India can be documented back to at least 1972 in the Supreme Court's Mathura judgment, acquitting two policemen who allegedly raped a young Adivasi girl in their custody. Many such 'landmark' protests have taken place since. Most recently, in November 2019, the rape and murder of a 27-year old veterinary doctor in Telangana stirred angry reactions and joint protests.



Along with public outrage, there were also angry outbursts by legislators and policy makers for instant, harsh punishments. Demands were made for the accused rapists to be "brought out in public and lynched" (Jaya Bachchan, Samajwadi Party MP), "castrated before they are released from jails" (P Wilson, DMK MP), "not be allowed mercy petitions" (Ram Nath Kovind, President of India), and "hanged" (Vijila Sathyananth, AIADMK MP, and Rekha Sharma, National Commission for Women Chairperson). Delhi Commission for Women Chairperson, Swati Maliwal, began an indefinite hunger strike to demand capital punishment.

On 6 December 2019, when the Telangana police shot dead the four accused men in an alleged encounter, it is this same public and political outrage that the law enforcement perhaps seeked to assuage. The shooting was celebrated across the country with policemen being showered with flowers and law-makers stating that "encounters should be made legal" (Locket Chatterjee, BJP MP).

Protests break out once every few years in select cases. But women are raped everyday. Under the garb of marriage (as marital rape is not criminalized). Under the garb of the Armed Forces Special Powers Act (AFSPA). In under-reported parts of the country like the North-East. In disconnected parts of the country like Kashmir. Lesbian, Bisexual, Trans*, Dalit, Adivasi women, and sex workers, face violence regularly.

So how do we then make sense of these selective, extreme responses? Why selective outrage for "brutal" rapes (gangrape, rape with murder)? Isn't all rape brutal? Why selective outrage for "rape accompanied by torture" (physical violence, burning)? Isn't all rape torture? When women are alive, we don't believe their testimonies. Do we need women to die to storm the streets? In this article, I hope to show that knee-jerk reactions demanding harsher punishments for particular kinds of rape are patriarchal in principle and harmful in practice.

Patriarchal hangover

In principle, the demand for harsh retributive justice for rape is premised upon a patriarchal understanding of rape. It views rape as more horrific than other forms of violence. This stems from the patriarchal fetishization of sexuality as taboo and shameful. It causes societies to rigorously police women's sexuality, criminalize "unnatural" sexuality, and protect genitalia and sexuality as more "private" aspects of our lives. This is why during war, beyond physical violence inflicted upon the enemy, rapes of civilian women are extremely common.

All of this lends to the understanding that any affront to a woman's genitalia must be more shameful than an affront to the rest of her body. It must be an affront to the core of her being, her identity, her dignity. In 2017, the Supreme Court of India judgment upholding the death penalty for Nirbhaya's rapists, said, "The devilish manner in which they played with her identity and dignity is humanly inconceivable." Through this, the Supreme Court is legitimizing the same narrative that rape survivors often hear. That survivors lose their dignity and bring shame upon their families. That a woman's life is destroyed after being raped. That being raped is worse than other forms of violence because along with causing physical and psychological trauma, rape also threatens a woman's dignity. This feeds a rape culture.

But a woman's dignity has nothing to do with her rape. Even in the face of horrific crimes, a woman's dignity remains hers alone. If dignity is lost, it is that of her rapists. Women's identity, value, honor, and dignity are not in their genitalia. While rape is a serious, horrific crime, there is nothing inherent in the act of rape that makes it more horrific than other forms of violence. It is the the addition of patriarchal societal attitudes and behaviour towards rape survivors that create more serious consequences for them. For instance, names of survivors of other forms of violence don't have to be kept secret because society doesn't consider it shameful to be victims of it.

Since we feel something more is lost when a woman is raped - her value and honor and identity - we feel compelled to want more justice for rape than other forms of violence, even though all violence is non-consensual. This is why we get moved to calling for the lynching, castration, and hanging of rapists. This is why police shoot alleged rapists in their custody. This does not happen in cases of non-sexual physical assault.

We can't fight such patriarchal attitudes towards rape by legitimizing them through demands for harsher punishments. None of this is to take away from the seriousness of the crime. But this is to say that our approach to a problem determines the solutions we find for it. Our approach to rape is based on patriarchal beliefs. Therefore, our responses for capital punishment suffer from a patriarchal hangover.

Does capital punishment work?

The demand for capital punishment is an indicator of an underlying society grappling unsuccessfully with rape culture. The measure of capital punishment is also counterproductive to women and harmful for men from lesser privileged communities.

While addressing Telangana State Road Transport Corporation (TSRTC) workers, the Telangana Chief Minister, K Chandrashekar Rao, recently commented that men should work night hours so women can go home. This assumes that women are safer at home than on the streets or at their workplaces at night. However, NCRB data shows that in 98% of cases, rapes are committed by someone known to the victim. With marital rape not being a criminal offence in India, the home and family are often the most violence spaces for women. Capital punishment will make it harder for women to report against family members. It is taboo and stigmatized to report rape in the first place. Moreover, instead of deterring rapists, capital punishment is likely to incentivize rapists to murder the victims, due to the fear that she may complain.

The death penalty is also discriminatory in its implementation. Poor, lower caste men who can't afford quality counsel are sentenced to death at disproportionately higher rates. A report by Project 39A finds that "prisoners sentenced to death in this country were almost always poor and belonged to the marginalised sections of society." The study shows that among the prisoners they studied, 74.1% of prisoners sentenced to death were "economically vulnerable" (based on their occupation and landholding), and 76% belonged to backward classes and religious minorities. The experience of death penalty is also not condusive to a fair prosecution. Project 39A reports a prisoner saying, "When anyone is tortured like I was, it no longer matters whether you did it or not, you will agree to anything to make the torture stop."

Should we fear the law, or should fear itself be the law?

When the Telangana victim called her sister instead of the police, it proves that women trust their sisters more than they trust the State. This happens for a reason. Women are regularly harassed at police stations and their testimonies are not always taken down when they want to file a rape complaint. Even in this specific case, Telangana Home Minister, Mohammad Mahmood Ali, blamed the victim for not calling the police. The Telangana police allegedly did not immediately file the complaint (citing disputed jurisdiction), and then accused the victim of eloping, as the Telangana victim's family reported to the National Commission for Women. How can a police force harboring under such patriarchal attitudes ever gain the trust of women?

Certainly not by responding to public and political demands for killing rapists by illegally killing the accused rapists in custody. Activists have raised serious open questions over the dubious circumstances of this alleged encounter. The Telangana police have stated that "They fired upon the police team and we retaliated in self-defence." How did four unarmed, presumably untrained men manage to overpower and attack an entire team of trained police officers, snatch their guns, and open fire? Why was the recreation of the crime scene happening at 3:30 AM? If the accused were indeed trying to escape (as the police say), why were they shot directly in the chest? Why were all four men shot?

Until these and other questions are satisfactorily answered, the alleged encounter looks more like illegal custodial murder. And none of us are safe when police kill in custody. Hence, this is a troubling precedent subverting democratic accountability. Law enforcement is meant to protect the law. It is not by itself the law. It is a failure of democracy when law enforcement takes the law into their own hands.

Moreover, a study by Project 39A, shows that 80% of prisoners in their study were meted out custodial torture inducing "extreme forms of physical and mental suffering." Torturing rapists, demanding they be lynched, and illegally killing them are clear human rights violations. But we permit, rather demand, for such inhumane treatment of rapists. Because rapists are thought of as inhumane monsters and criminals. "No mercy for rapists" has been a loud protest slogan.

This narrative of rapists being monsters is core to police brutality and the demand for capital punishment. Because if rapists were thought of as human, it would be harder to justify killing them. However, rapists are humans. Nobody is born a rapist. Rapists are moulded from the same patriarchal society we live in. If we want to solve the problem of rape, we need to start from here. We need to address the problem at its root.

Addressing the root of the problem

Violent reactions from policy-makers and law enforcement attempt to kill rapists and leave uncontested the patriarchal social conditioning that creates rapists in the first place. Rape culture is perpetuated through everyday actions. Through movies like Kabir Singh (promoting violence against women as a legitimate form of love). Through the silence of the media in reporting rapes that happen everyday. Through the tradition of "giving away" the bride to the groom. Through Supreme Court judgments that uphold narratives about consent such as "a feeble "no" may mean a "yes"."

These patriarchal attitudes promote men's entitlement over women. Besides rape, this power manifests itself through discrimination, harassment, and abuse. The only way we can move towards a society where the oppression of women (be it in any form) is not so ubiquitous is by changing community attitudes towards women.

This can be done by educating young girls and boys about consent through outreach programs and meaningful sex education in all schools, sensitizing law enforcement officers, believing the testimonies of women, discarding the idea that a woman's dignity lies in her genitalia, and reflecting on how each of us contributes in some (known or unknown) way to rape culture.

Structural changes are required to make rape trials move faster - it is the certainty, not severity of a punishment that deters crime. Marital rape needs to be criminalized. Rape survivors require rehabilitation to realize that the consequences of rape are reversible. The government, with its unparalleled access to resources, needs to allocate them effectively to make this long-term changes happen. But it is currently failing at its job. Constituted in 2013, the Nirbhaya Fund's utilisation is still reported to be dismally low, less than twenty percent.

Instead of investing in such sustainable changes, when police illegally shoot rapists in a presumably staged encounter, and policy-makers demand capital punishment, they hurt the gains women's movements have made in the country. Think back to the Mathura rape case and the following protests against custodial rape that this article began with. As a direct response to the incident, it launched many powerful women's movements in India through the formation of women's groups that are still doing excellent work today. How do we continue that fight today? We lose all moral ground to protest custodial rape when we support custodial murder.

Killing a few men (be it through capital punishment or alleged police encounters) will not remove the infrastructure of an entire oppressive ideology that keeps men in power and women "in their place". Instead, it will strengthen it. By legitimizing the rape narrative of women's genitalia and sexuality being the carriers of a community's honour. By disincentivizing reporting. By getting victims killed. And by killing poor men who can afford to die.

Radhika Radhakrishnan is a feminist researcher and women's rights activist.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]