Any average individual accustomed to the ways of “rape culture” widely prevalent in India would attest to the fact that Hathras rape and murder is just another chapter of abuse and shame in the long list of barbaric sex crimes committed against Dalit and tribal women.
The NCRB crime data for the year 2019 released by MHA (Ministry of Home Affairs), Government of India on 29 September, 2020, reveals that India recorded an average of 87 rape cases daily in 2019 and overall 4,05,861 cases of crime against women during the year, a rise of over 7% from 2018. Uttar Pradesh tops in crimes against Dalit and tribal women in particular.
The trend has not bucked once in many years now. Despite the presence of supposedly strong laws on the statute book in the form of the Indian Penal Code, 1860 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the graph of crimes committed against Dalit and tribal social groups has registered a steady spike over the years.
As per the latest report, overall crimes against Scheduled Castes increased by 7% in the year 2019. Even in the year 2017, the data reflected grim figures and this conclusively points towards the ground reality that perhaps there is no place of safe refuge for Dalit and tribal women and children of India.
Rape culture has been understood by scholars as signifying more than just “sexual violation” of the body of a woman. The term gained currency in the 1970s. The term first appeared in Rape: The First Sourcebook for Women, published by the New York Radical Feminists Collective in 1974, and was explored in depth in the 1975 documentary Rape Culture.
The culture draws sustenance from the hegemonic power assertion of the “elite” or the influential communities in society over the life and choices of Dalit and tribal communities in the context of India. It goes beyond gender-based discrimination but rather takes the colour of caste-based oppression in the Indian social milieu. So “rape” becomes a method to silence the voice of self-determination or free-thinking occurring with the erstwhile “untouchable” communities.
Over time, several Dalits have moved up the social ladder and lead a lifestyle closely comparable with the resourceful and traditional elites. As per some studies, this phenomenon often leads to violent reactions by the dominant castes in the form of rape, murder and assault on them as the “social elites” resist the narrowing of the gap between historically ordained inequities.
For the dominant elites, the social advancement of the erstwhile subjugated class of people upsets the status quo and it deserves to be “put in order” by silencing their assertion through either by the device of compromise in most criminal cases or by inflicting outright violence.
This brings us to the vexed question. Is the rule of law a mere chimaera then for a vast section of the population in India? Sociological inquiries reveal that Dalits inhabit a polarised world in the hinterland of India as they remain cut off from the hegemonic castes and communities and never get to participate in the “corporate and normal” humdrum of life. As per a Times of India report, the Hathras rape victim’s brother had this to say in reference to upper caste inhabitants of the village, “They don’t acknowledge us. It’s as if we do not exist.”
The rivers of caste discrimination run deep and documented history confirms this harsh reality of India. In an impactful study uncovered in the Human Rights Watch report of August 2009 titled Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, it was noted that “police routinely fail to register and investigate complaints of crimes against Dalits when the perpetrators are of a high caste. Instead, they encourage victims to settle disputes privately or threaten them with false arrest”.
In this toxic world of social isolation and endemic discrimination, justice is likely to die an early death when police personnel instead of being the protectors and saviours for Dalits ensure that a victim of rape and murder not only dies a lonely death but even in death is deprived of the basic dignity when close family members are stopped from even paying their last respects to the departed soul. A dead person deserves a dignified burial or cremation as per the rites followed by the community to which she belonged — the denial of the same amounts to a clear violation of well-recognised human rights.
While it is evident that caste violence is endemic and structural in Indian society, the act of denial of basic decency and courtesy to a victim of rape and murder speaks volumes of the insecurity and biases of the police and administrative apparatus.
What is surprising is the fact that, as per live footage relayed in news channels across the spectrum, it was noticed that a human chain was formed by the police to prevent the near and dear ones and media personnel from approaching the hurriedly mounted funeral pyre of the rape victim. What could be more tragic and unfortunate in a democracy than the fact that a battered and severely bruised dead woman of 19 years spooks the police and administrative agencies to such an extent that they wish her corpus to vanish in thin air?
In the dead of night, the victim was taken to the cremation ground, and this happens after she struggled for over two weeks to survive in a government hospital in Delhi. Why the hurry to dispose of the body quickly? This may need to be explained by the police agency in the near future. As per news reports, the Allahabad High Court has summoned police officials in the case, taking suo-moto notice of the hurried cremation.
Law is considered as a potent tool to fight crime and injustice. But what happens when the enforcers of law and order themselves create veils of secrecy and shades of anonymity around chapters of abuse and violence in society? Dalit and tribal women have suffered grave manifestations of sexual violence and abuse by both state and non-state actors.
It has taken a long battle by civil rights activists and social reformers to ensure that the whole prism of viewing a “rape victim” herself being responsible for the crime and carrying the “burden of proof” in a court of law to prove the fact that “indeed she was raped” as she did not consent for the sexual act, to the stage where the gaze of law has now shifted from the “victim” to the “perpetrator” of the crime.
The reform process in law began sputtering in the Mathura case in the year 1979. In this case, a tribal woman was sexually assaulted in a police station, but based on a lower court ruling, the Supreme Court released the police officials in a controversial decision observing that since “there were no injuries on her body and no resistance, it can’t be rape”. Outrage and protest were registered against the judgment by many women intellectuals and leading law academicians of the time who expressed regret at the judgment.
Subsequently, the Criminal Law (Second Amendment) Act, 1983 was passed which amended Section 114 of the Indian Evidence Act 1872 along with a few other aspects of the penal law. It was laid down that if the survivor (rape victim) stated she had not consented to sexual intercourse, then “it shall be presumed in law that she did not consent” for the sexual act. Earlier, the victim carried the burden to prove her violation and in courtroom scenarios used to suffer humiliation and mockery. They had to answer humiliating questions about their past sexual history.
Now relevant amendments have been inserted in substantive and procedural law to remove such anomalies, but still, insensitive questioning continues as per some reports. However, rape crimes against Dalits and tribal women have persisted and this is clear from the fact that even drastic criminal law amendments brought in the wake of the Nirbhaya case also seem to have failed to arrest the serious crime trends.
Perhaps, the problem lies at the reporting stage and investigation more as police are invariably reluctant to register cases and lodge an FIR (First Information Report). Even if a case is registered, they tend to ignore their bounden duty to bring the perpetrators to justice. It may be remembered that the mandate of law is evident on the aspect of filing of an FIR in a cognisable case or a case of serious nature in layman’s understanding and it dictates that an “FIR must be registered” by the police.
In the case of Lalita Kumari v. Government of Uttar Pradesh and others, a 5-judge bench of the Supreme Court of India on the question of “mandatory registration of an FIR” held: “The police officer cannot avoid his duty of registering offence if cognisable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognisable offence.” Rape and murder qualify as cognisable offences within the scope of the law.
Close on the heels of the Hathras incident comes another report of an alleged brutal rape in Balrampur district of Uttar Pradesh. It will be worthwhile to recall that brutal rapes and acts of violence against Dalits and disempowered have led to internecine warfare and caste conflicts in the past.
The story of personalities like Phoolan Devi who took to arms after facing repeated brutalisation remains alive in public memory and is part of folklore in the ravines of Chambal valley. Caste atrocities unheeded and unaddressed sufficiently by law agencies portends a disturbing future. We might be staring at civil unrest even as we sit on a tinderbox of lawlessness.
The Hathras rape case shall once again lead to animated debates on the efficiency of laws and several reasons are already being furnished to decry the event. Factors like poor sex education in the country to a poor police response system are going to share the blame. Above everything else, the public confidence in institutional justice seems to be on the wane and this is a cause for alarm. Therefore, it is vital to reinvigorate the immediate legal response system towards such brutal crimes and no let-up should be there till the time the investigation is not completed properly.
The neighbourhood thana is the pivot of law and order in the hinterland and urban jurisdictions and it must be able to evoke a friendly and helpful reputation in public estimation. Police machinery at the local level needs to weaned away from caste and community-based allegiances which perhaps operate at a subconscious level and must be trained to listen, obey and pay heed to legal and rightful commands and orders only.
In this light, the long lost subject of police reforms once again gains relevance and needs to be brought out of cold storage. A recent report brought out by the Commonwealth Human Rights Initiative highlights the poor implementation of the Supreme Court of India’s seven directives on police reforms by different states. These reforms were initiated as an outcome of the PIL filed by two former DGP’s, Prakash Singh and NK Singh in the year 1996. It has been noted in the report that except Arunachal Pradesh and Andhra Pradesh most States have not complied substantially with the directives.
It will be relevant to observe in the case of Hathras that in the aftermath of the crime the kith and kin of the victim are not harassed by the police machinery and the administrative apparatus doesn’t coerce them into a compromise. An atmosphere for a free and fair trial of the arrested persons must be ensured as this is an acid test for our democracy.
It is time to combine the promise of fearless and peaceful governance with some robust action on the ground by the incumbent political establishment. Narratives of discrimination and systemic abuse will lead to even more complex spin-offs of social dissension and disharmony. Therefore, police and law enforcement agencies must aid in the process of justice. There should ideally be no occasion for courts to intervene.
However, in a severely fractured society along caste and community lines, the overawing and intimidatory police machinery comes as a knock on the spine and the judiciary remains the last hope for the people crushed by the system. From the still smouldering ashes of the Hathras rape victim, shrill cries for justice rent the air. The question facing our legal system is: Will justice prevail after all?