The political, legal and social order that tolerates a laceratingly high threshold of sexual violence once again reveals the extent of sexual impunity in our polity. The horrific murder and rape of a resident doctor in RG Kar Medical College and Hospital in Kolkata led to expressions of collective trauma, anger and mourning. It led to powerful protests by doctors, nurses, students, teachers, workers, and ordinary citizens demanding justice. The case now stands transferred to the CBI, after the directions of the Calcutta High Court.
The Bharatiya Nyaya Sanhita (BNS) was justified on the grounds of gender justice. The mass renumbering of the penal code placed crimes against women at the beginning of the code. However, this meant nothing to victims, whether in Uttarakhand, Bihar or Maharashtra. Renumbering does not create a culture of deterrence. Nor does the death penalty.
Rejecting feminist recommendations, the BNS introduced the death penalty in rape law. It expanded the regulation of sexuality, instead of protecting the bodily autonomy of all victims of sexual violence. The BNS was drafted during the mass scale and systemic sexual violence in Manipur. The Verma Committee, which was formed after the December 2012 gangrape in Delhi, had recommended making command responsibility liable to prosecution, especially when states ignore their duty to prevent mass scale sexual violence. This was ignored. The BNS also ignored the serious recommendations to redress and prevent sexual violence made repeatedly by autonomous women’s movements.
Contrary to the spirit of the Vishaka judgment, the processes led by women to redress sexual harassment were handed over to employers who have a vested interest in not preventing or redressing sexual harassment at the workplace. And backlash against those who fight sexual harassment is now institutionalised, even by the courts as workplaces. Change in rape cultures is not possible if difference, critique and dissent are censored, disciplined or criminalised — as witnessed in the criminalisation of protest in the Hathras case, a terrifying assertion of law as patriarchal caste order.
The mass scale de-funding of women’s groups who worked with rape survivors and gender-based violence has been fatal. It has led to a tremendous loss of experience and expertise.
De-funding accompanies institutional capture, where policies on admissions, recruitments, rules of seniority, or inclusive governance are set aside to facilitate nepotistic and arbitrary processes in admissions and recruitment. When institutions gather impunity, it is inevitably dangerous for women.
The state is heavily invested in funding (male) forensics. Yet it has no funds to provide rape survivors clothes (and other items, including sanitary napkins, undergarments slippers or containers) when it seizes clothes, samples and other personal items for forensic analysis. Providing such kits to rape survivors has not yet become part of right to life jurisprudence.
The state is heavily invested in funding technology. It used the Nirbhaya funds to install CCTV in public places. Deploying CCTV or biometrics without any data protection for women, designing online courts (or live streaming) without a safety audit, or using forensic techniques of power which create vulnerabilities and harm, instead of safety, accountability and deterrence, foregrounds the male in the state.
The state has no funds to create shelter homes, safe houses, or provide financial support to survivors. The language of compensation is pulverised to the extent that it is not seen as a right for the harm done, rather it is often argued that women lie to get money.
Following the rape and murder in Kolkata, the Supreme Court has set up a national task force of doctors to create gendered safety norms for medical professionals (and presumably for patients). However, safety must be linked with de-funding and impunity. Conditions of sexual and gendered unsafety are produced by “impunity institutions” that work together.
Can a “safety” jurisprudence develop tort law? Why is the law on constitutional tort not applied when an institution fails to provide safety to women? Surely, workplaces are liable if we do not have a safe place to work, rest or pee when we are there? In bringing tort law to rape and murder at the workplace, perhaps a culture of deterrence might be built?
Intersectionality, now part of the constitutional doctrine on the jurisprudence on the rights of rape survivors, is meaningful only when it displaces impunity. What do courts do to ensure that Muslim women who face routine hate campaigns feel safe in police stations, hospitals and courts? Why do Dalit women have to fight bitter and grim battles so that judges feel their outrage in their minds, bodies and behaviour?
And documents, names, photographs and videos are leaked both by state and non-state actors. Videos of raped women are also circulated as a resource for competitive party politics. At times, “atrocity videos” are expressions of outrage or used to expose impunity institutions. The leaks, social media practices and sexist language deployed by state actors are used to gaslight women.
When an autopsy report leads to public discussions about “forensics” such as the “quantity” of “semen”, it is not a discussion about forensic methods. Rather, it is pornography by other means. This is how male bonds are forged over images of violated bodies, as the sexual contract with a male state finds viral expansion over digital networks across ideological and political divisions.
Surely law must be put in context. This means recognising that a majoritarian law, state, and society is selective, partisan and sensational. Sadly, when and if the court acts suo moto, feminist languages against sexual violence often do not inform legal arguments. Repeated and excited references to rape as “sexual perversion” or “animal”-like behaviour of the rape accused negate feminist constitutionalists who have inaugurated empowering languages about how rape must be understood and spoken about. Tragically, patriarchal, majoritarian, carceral and mainstream criminological languages continue to monopolise the way sexual violence is represented, despite excellent interventions by feminist lawyers and advocacy. It is a terrifying social fact that rape has to remain a preferred form of patriarchal violence to conserve majoritarian social, political and legal order.
The writer is professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
