The Punishing State
It is necessary to critique its tendency to over and under-punish sexual violence.
The Bombay High Court in the Shakti Mills case upheld the constitutionality of Section 376E of the IPC that provides for life imprisonment till the end of natural life or death sentence for the repeat offence of rape. A legacy of the criminal amendments after the 2012 Delhi gang rape, the provision brings into focus once again the complex and uncertain relationship between punishment and sexual violence. This remains an under-explored area for feminist legal thought in India, which is simultaneously sceptical of increased state power and also has a deep interest in fixing criminal responsibility for sexual violence.
While the Bombay High Court leaves open the question as to whether Section 376 is applicable in the Shakti Mills case, the judgment is yet another ringing endorsement for harsher punishment for sexual violence. This legislative trend is evident across the 2013 and 2018 criminal law amendments and has occurred in a context where there has been very little guidance from the feminist movement on approaches to punishment for sexual violence.
The CLA 2013 emerged from the protests against sexual violence sparked by the gang rape and murder of the 23-year-old student in Delhi in December 2012. The government responded by constituting a committee under the chairmanship of Justice J S Verma, a former judge of the Supreme Court, to review the existing laws on sexual violence and suggest appropriate punishments. The committee invited suggestions from the public, lawyers, jurists and civil society organisations for “possible amendments in criminal laws and other laws to provide for quicker trials and enhanced punishment for criminals accused of committing sexual assault of extreme nature against women”. The committee report was followed by the enactment of CLA 2013, which brought significant changes to substantive and procedural laws along with increasing penalties for existing and new offences, and introducing minimum mandatory sentencing without judicial discretion.
While feminist groups made extensive submissions on substantive aspects of law well beyond the scope of the public notice by the Justice Verma Committee, the submission lacked any discussion on the normative role ascribed to punishment in trials involving sexual offences. The engagement on punitive aspects of sexual offences was limited to the death sentence and life imprisonment without remission. While the death sentence was strongly and unequivocally opposed by all feminist groups in their submissions, some groups demanded enhancement of punishment for aggravated rape to life imprisonment without remission.
The Indian feminist movement’s absence of engagement with punishment was, however, not exclusive to the Justice Verma Committee submissions. It is something that has been largely missing from the movement itself. As a result, while the CLA 2013 brought remarkable substantive changes in sexual violence laws, including the expanded definition of rape to include digital rape within its ambit and a comprehensive definition of “consent”, it was heavily a carceral project since it relied on the state’s power to punish to address sexual violence.
While there has been significant feminist strategising in India on the ideas of justice for survivors of sexual violence beyond punitive state action to encompass broader notions of justice, including restorative justice, the carceral approach itself has not received sufficient attention. Feminist theorisation on punishment in India has largely been restricted to the death penalty. It has been critiqued on philosophical grounds for being a cruel and unusual punishment giving unprecedented “retributive” power to the state to kill its own citizens. In the context of sexual violence, it has been opposed on the ground of a highly “masculine” state imposing excessively harsh punishments on men in the name of protecting women. It has also been argued that the death penalty deflects attention from those conditions which create, normalise and sustain violence against women. The penalty has also been criticised on the basis of empirical and social realities of sexual violence in India, including the low rate of conviction in rape trials, significantly high number of incidents of acquaintance rapes and under-reporting of sexual violence. Besides the strong feminist objection to capital punishment for sexual violence, it is the trivialising of sexual offences by under-punishing them that has received the attention of the feminist movement and has pushed the movement to advocate for legal reforms, including demands for stronger and enhanced punishments.
It is pertinent to note that feminist articulations against the death penalty have been in stark contrast to their demand for life imprisonment till the end of natural life without remission for aggravated rape during the Justice Verma Committee submissions. The same reasons for opposing the death penalty espoused by feminist groups hold true for life imprisonment, when it puts the convict’s sentence beyond the pale of remission or parole.
Inconsistencies in feminist articulations of harsher punishment can be attributed to the absence of any feminist theorisation on approaches to punishment for sexual violence in India. Such theorisation is indispensable in the current context where harsher punishments have been offered as a solution by the state to address sexual violence. The state must do more than make punishments more stringent. There is a need to oppose the over-punitive approach of the state to sexual violence. We ought to have a deeper and sustained engagement on punishment beyond sporadic articulations of objections against the death penalty and issues of under-punishing sexual violence. A feminist imagination of the criminal justice system in India must account for the tendency of the Indian state to over-criminalise and over-punish. Such inquiry will help to critique issues of the state over-punishing and under-punishing sexual violence.
This article originally appeared in The Indian Express.