The much awaited verdict in the 16 December 2012, Delhi gang rape case was delivered yesterday by a juvenile court. The youngest accused of rape and murder, declared juvenile, by the Juvenile Justice Board in India, received three years at a reform centre. The eight months he has already served at a remand home after his arrest will be deducted from his sentence. So, for his beastly premeditated crime which included; raping the 23 year old student twice (once while she was unconscious), pulling out her intestines; throwing her out of the moving vehicle along with her friend; and for her murder (she lost her life eventually) he gets to spend a mere 28 months in a remand home only because he was 17 years 6 months and 24 days-old at the time when he committed the crime. Experts and analysts all uphold India’s ‘progressive laws’ and the moral high ground that the offender has been given a chance to reform and to have a change of heart. There are no signs of any vigorous debate on this issue and a lull seems to prevail; justice served, the general belief.

The parents of the girl who was subjected to the savagery and who lost her life, have been devastated by this judgment. The distraught mother said that this was not any kind of punishment and he might as well be acquitted; the emotional father said that it was a crime itself for girls to be born in India and this judgment, in his eyes, seems to convey that female feticide is better than subjecting girls to such horrendous violence in their later years. It is difficult to ignore the magnitude of their grief and this is a travesty of justice as I want to argue in this short piece. The quantum of punishment does not reflect the enormity of the crime and I do not believe that this judgment sends any strong message to society about how seriously rape and violence against women are taken in the country.

The Juvenile Justice Board (JJB) which determined that the offender was a minor relied on his birth certificate and school documents produced before it. The headmasters of the school where he was briefly enrolled had only remembered what was told to them at the time of admission. Anyone who has gone through the school system in India knows that tampering with birth certificates (reducing the age normally) is a flourishing business in India. In fact it is the very first step towards understanding how unethical and corrupt practices are ingrained in Indian society. It is very much part of urban elite India as much as in rural India where many births are still unregistered and documents missing. Moreover, it was reported by the media that the JJB also rejected the police’s plea for bone ossification test of the juvenile offender. If there was no conclusive evidence that he was indeed an adult, there was surely scope to doubt that he was a juvenile.

Moreover, the nature of the crime should have been considered in this case. I have never believed that capital punishment is the best way out in rape offenses but this was an opportunity to send out a strong message that violence against women is taken seriously by the law. In New South Wales, Australia where I lived for a number of years, the juvenile penalty kit for families, states that the “the court can place a juvenile on a control order to be served in detention for up to two years on any one offence and up to a maximum of three years. If the child appears before a higher court on serious matters, they can be treated as an adult and sentenced to a longer period.” Laws in other Western countries also respond to the nature of the crime while dealing with juvenile offenders. In the US the punishment for a juvenile can be as extreme as life imprisonment without parole.

Although the immediate aftermath of the Delhi rape and the outrage that followed pushed the government to review and amend the anti-rape laws, many of the serious issues related to rape as a crime have been pushed to the back burner. The Indian government had also proposed earlier in the year that the Juvenile Justice Act would be amended to try violent juvenile offenders as adults especially in the case of heinous crimes. This was preferred over the more popular demand of lowering the juvenile age to 16 instead of 18.  There is no information about where the proposal for such an amendment stands, given the recent verdict. However, it can never be applied in retrospect.

Some have argued that the law of the land has been upheld and we couldn’t have done better than that. I would have agreed in principle if the law of the land had been consistently upheld in all cases and every offender was meted equal treatment before the law. But India is the same country that has overturned judicial verdicts even by the Supreme Court in the past (especially those that gave reprieve to women, for eg. in the Shah Bano case) in ‘public’ interest. Many of us had protested the hanging of Kashmiri militant Afzal Guru in the absence of credible evidence to support a capital punishment, but the judgment read that he was to be hanged to ‘satisfy the collective conscience of the society’. In many cases the law has come to the defense of the rich and the powerful offenders. Ever wondered why the rich and the powerful, after being found guilty of their crimes, repose unwavering faith in the judiciary of the country?

The social and legal rehabilitation of rapists and sexual predators has always been the norm and a frustrating road block to any serious legislation on sexual violence against women.  Given the precedents, there is no reason to imagine that a stricter punishment was not possible or could not have been considered. When we are often told that no two cases are exactly similar and law relies on ‘differences’ and circumstances of each crime to ensure that justice is best served not by a uniform application of law. This was the rarest of the rare cases, not because the violence alone was unprecedented, but because of the impunity with which the crime was committed, the planned manner in which it was executed. A fellow human being was dehumanised in an everyday setting, in what we perceive as a ‘normal’ set of circumstances. This was neither a war zone nor a highly militarized set up wherein, it is always possible to find reasons to understand violence against women.  In a country where rape conviction rates are abysmally low and it is very difficult for women to seek legal intervention, this was an opportunity squandered – to provide confidence to victims’ families and survivors that the law of the land is responsive to sexual violence against women.

Experts and analysts on TV were all upbeat about the possibilities of rehabilitation of a juvenile offender, of reforming him and giving him a chance to have a change of heart. I remain very pessimistic about this possibility, least of all because the offender has not even admitted to his crime, shown remorse and instead pleaded innocence despite overwhelming evidence against him. The juvenile law in India suggests that you deserve another chance to reform because you are 17 years and 364 days (a day short of 18). The brutality of the crime does not matter as long as the technicality of law declares that you are a minor. As soon as you are a day older and turn 18, the judiciary loses faith in your reformation and rehabilitation? Moreover, there is enough evidence from various studies in other countries that reform and parole are violated by convicted rapists and criminals who target women.  A lenient punishment hardly deters them. In the recent debates in Australia, after the Jill Meagher rape and murder case in Melbourne, experts and researchers are “categorically ruling out the possibility of reform for the most dangerous and violent offenders.”

While we have awaited the news about the judicial verdict in the Delhi gang rape case (and several others), rape and brutalization of girls/women have continued without a day’s respite.  A 23 year old photo journalist was gang raped in Mumbai; a woman was assaulted, gang-raped and robbed (allegedly by policemen) at an apartment in Noida; another 22-year-old pregnant woman, in Jamshedpur, Jharkhand was raped by her brothers-in-law while her husband refused to pay attention to her plight; a 20 year old Dalit girl was abducted, raped, tortured and murdered in Haryana. Life goes on as usual in a country where violence against women is normalized, rape considered something that women either deserve or provoke!  Some cases will reach the courts, few will get convicted, and most won’t for lack of evidence.  The ‘collective conscience’ of society will continue to argue to rehabilitate rapists as ‘human beings’; to not dehumanize those offenders deprived of love, care, normal upbringing, living in poverty, under caste/class oppression etc. Meanwhile, women (of all hues) can wait; gender violence can wait. Justice must first serve the neediest – the offenders to whom humanity must be restored.

In three years time the juvenile offender in the Delhi gang rape case will be ‘reformed’ and will have the opportunity to build a normal life like Sohanlal Bhartha Walmiki, remember him? Aruna Shanbaug lies in a vegetative state; Priyadarshini Mattoo is dead; Amanat is dead too; there are many others dead or surviving. Their families can never have closure as for the rest of their lives, they must deal with their loss and trauma; and fight the strange laws of the land that uphold a warped notion of ‘humanity’ and ‘conscience’. Meanwhile, there will be many more rapes that we will have to learn to live with; it could be me, you or the woman there….and there.

by Swati Parashar