‘Nirbhaya’ and the call for spectacular justice

March 29, 2020

Four men convicted in the 2012 Delhi rape and murder case, were hanged to death last week amidst ongoing media frenzy, but has justice really been served?

On March 19, four convicts held at Tihar Jail for the rape and murder of 23-year-old Jyoti Singh Pandey (known as ‘Nirbhaya’ in the media) in New Delhi in 2012 were hanged. For the last few months, the media had been following preparations for the hanging closely, hyper-publicising the ‘delivery of justice’ with the same voyeuristic zeal with which it had covered the case in 2012.

In 2012, public outrage, coupled with media scrutiny, had compelled the state and judiciary to respond with unprecedented speed, incentivising legal and political reform. The Justice Verma Committee was set up to review the Criminal Law Amendment Bill 2012 introduced in December before the incident. The committee submitted a report in January 2013 that went beyond its mandate (to suggest amendments for “quicker trial and enhanced punishment”) to put forth a comprehensive perspective on gender-based violence. The report foregrounded issues of power and consent in defining sexual violence, moving away from outdated notions of honour and modesty. It acknowledged sexual violence faced by transgender persons, and considered gender-based violence in specific contexts of marriage, workplace harassment, trafficking, and armed conflict. In addition to recommending amendments to criminal law, it suggested police, educational, electoral and social reforms that would shift prevention and redressal mechanisms.

While Jyoti Singh’s case impelled much-needed legal reform and political action on sexual violence, the parliament and judiciary were unduly influenced by public outrage and a clamour for the death penalty. The discussions in the Lok Sabha on the Criminal Law (Amendment) Ordinance in 2013 were fuelled by an urgency to mould legislation in reaction to the case. The law that came into force in April 2013 left out several recommendations made by the Verma Committee. Even though the report had argued that the death penalty for rape would be a “regressive step” that should not be introduced, the 2013 law listed death penalty as a plausible sentence in cases of rape which resulted in the victim’s death or “permanent vegetative state” or was a repeat offence. Crucially, as one of the accused in Jyoti Singh’s case was a 16-year old, amendments were introduced to the Juvenile Justice Act that would permit magistrates to try as adults, 16-18 year-olds accused of heinous crimes— a move that would make it possible for them to be sentenced to life imprisonment or death.

While Jyoti Singh’s case impelled much-needed legal reform and political action on sexual violence, the parliament and judiciary were unduly influenced by public outrage and a clamour for the death penalty.

The public's decision - that ‘justice’ in Jyoti Singh's case was near-synonymous with hanging the convicts - also played a critical role in the court proceedings. In 2017, when the three-judge bench pronounced its verdict, it opined that Jyoti Singh’s case “was ‘bound to shock the collective conscience which knows not what to do’ and a lesser punishment would ‘shake the confidence of the public’ in the criminal justice system.” Thus, it can be argued that the state and the judiciary were both motivated by public sentiment rather than their duty to uphold each individual’s fundamental right to a fair trial and equality before the law.

Many claimed that the convicts ‘deserved’ the death penalty because it was the only punishment that could ‘avenge’ the ordeal faced by Jyoti Singh and her family. The notion that death-for-rape is proportionate punishment is rooted in the idea that sexual violence itself is not only an exertion of power and an act of violence but equivalent to death itself. Sexual violence is thought to have not only caused a woman harm but also dispossessed her of her virtue and chastity, and so, her identity as a woman, rendering her a ‘zinda laash’ (living corpse). This framing not only adds to the stigma against rape survivors but also upholds patriarchal conceptions of ‘women’s place’ and value in society which in turn contributes to disregard for her sexual and bodily autonomy.

Other proponents of the death penalty claim that the threat of such a stringent punishment will deter sexual violence. This argument does not seek to cause direct harm or exact revenge from Jyoti Singh’s rapists but is directed at preventing sexual violence. Here, the punishment has little to do with the life and death of the men convicted but with what it signifies about the values of our society and the ability of our justice system. The fundamental flaw in this argument is the presumption that the death penalty serves as a deterrent. The theory that severe punishment will deter serious crime might seem intuitive but there is no evidence that the death penalty deters sexual violence or murder. Worse still, the death penalty may be counterproductive because it is more likely to deter survivors from reporting violence rather than rapists from raping. Additionally, since sexual violence is committed predominantly by family or acquaintances (according to the National Crime Statistics Bureau’s 2016 report, in 94.6 percent cases of rape the accused were family members of the victim/survivor), a survivor is likely to face immense pressure against reporting, especially if she or her family is financially dependent on the rapist. The fear of being sentenced to death is also more likely to serve as an incentive for rapists to kill victims so that they cannot report (NCRB also reported a 30 percent rise in victims being killed after being raped).

It cannot be ignored that public outrage in Jyoti Singh’s case that resulted in the clamour for the death penalty was selective. When women and gender minorities speak up against a continuum of gender-based harm, they are likely to be ignored or invalidated, as if sexual violence will only stir our collective consciousness if it results in death. Sexual violence when committed against women from marginalised communities, sex workers and transgender persons or committed by people in power, like the police,army, politicians or godmen rarely incites similar indignation. The death penalty is also disproportionately meted out against men from marginalised socio-economic backgrounds. We are yet to accept that ending gender-based violence requires us to do the difficult, and unspectacular, work of interrogating rape culture, dismantling systems of power and oppression, and reimagining our conceptions of justice.

The spectacle made of Jyoti Singh’s devastating case had us convinced that the convicts were depraved ‘animals’, ‘monsters’, or ‘mentally unstable’, that none of them was one of us. With that, we expunged culprits from our society, exteriorised the problem, absolved ourselves of our collective responsibility, and stood outside Tihar Jail early on a March morning, counting down to the hangings, to celebrate in the streets and proclaim that “justice” had been served, to sleep soundly knowing we had succeeded in avenging Jyoti Singh, fighting for her mother and in doing so saving the lives of countless women who would now no longer face sexual violence. If only it were so easy.

The writer is a feminist legal researcher and PhD candidate at Columbia University. She runs the Detention Solidarity Network and is a contributor at Smashboard.

‘Nirbhaya’ and the call for spectacular justice