Source:indianexpress.com<\/p>\n\n\n\n
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. <\/p>\n\n\n\n
While the Bombay High Court leaves open the question as to whether \nSection 376 is applicable in the Shakti Mills case, the judgment is yet \nanother ringing endorsement for harsher punishment for sexual violence. \nThis legislative trend is evident across the 2013 and 2018 criminal law \namendments and has occurred in a context where there has been very \nlittle guidance from the feminist movement on approaches to punishment \nfor sexual violence.<\/p>\n\n\n\n
The CLA 2013 emerged from the protests against sexual violence \nsparked by the gang rape and murder of the 23-year-old student in Delhi \nin December 2012. The government responded by constituting a committee \nunder the chairmanship of Justice J S Verma, a former judge of the \nSupreme Court, to review the existing laws on sexual violence and \nsuggest appropriate punishments. The committee invited suggestions from \nthe public, lawyers, jurists and civil society organisations for \n\u201cpossible amendments in criminal laws and other laws to provide for \nquicker trials and enhanced punishment for criminals accused of \ncommitting sexual assault of extreme nature against women\u201d. The \ncommittee report was followed by the enactment of CLA 2013, which \nbrought significant changes to substantive and procedural laws along \nwith increasing penalties for existing and new offences, and introducing\n minimum mandatory sentencing without judicial discretion.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
The Indian feminist movement\u2019s absence of engagement with punishment \nwas, however, not exclusive to the Justice Verma Committee submissions. \nIt is something that has been largely missing from the movement itself. \nAs a result, while the CLA 2013 brought remarkable substantive changes \nin sexual violence laws, including the expanded definition of rape to \ninclude digital rape within its ambit and a comprehensive definition of \n\u201cconsent\u201d, it was heavily a carceral project since it relied on the \nstate\u2019s power to punish to address sexual violence.<\/p>\n\n\n\n
While there has been significant feminist strategising in India on \nthe ideas of justice for survivors of sexual violence beyond punitive \nstate action to encompass broader notions of justice, including \nrestorative justice, the carceral approach itself has not received \nsufficient attention. Feminist theorisation on punishment in India has \nlargely been restricted to the death penalty. It has been critiqued on \nphilosophical grounds for being a cruel and unusual punishment giving \nunprecedented \u201cretributive\u201d power to the state to kill its own citizens.\n In the context of sexual violence, it has been opposed on the ground of\n a highly \u201cmasculine\u201d state imposing excessively harsh punishments on \nmen in the name of protecting women. It has also been argued that the \ndeath penalty deflects attention from those conditions which create, \nnormalise and sustain violence against women. The penalty has also been \ncriticised on the basis of empirical and social realities of sexual \nviolence in India, including the low rate of conviction in rape trials, \nsignificantly high number of incidents of acquaintance rapes and \nunder-reporting of sexual violence. Besides the strong feminist \nobjection to capital punishment for sexual violence, it is the \ntrivialising of sexual offences by under-punishing them that has \nreceived the attention of the feminist movement and has pushed the \nmovement to advocate for legal reforms, including demands for stronger \nand enhanced punishments.<\/p>\n\n\n\n
It is pertinent to note that feminist articulations against the death\n penalty have been in stark contrast to their demand for life \nimprisonment till the end of natural life without remission for \naggravated rape during the Justice Verma Committee submissions. The same\n reasons for opposing the death penalty espoused by feminist groups hold\n true for life imprisonment, when it puts the convict\u2019s sentence beyond \nthe pale of remission or parole.<\/p>\n\n\n\n
Inconsistencies in feminist articulations of harsher punishment can \nbe attributed to the absence of any feminist theorisation on approaches \nto punishment for sexual violence in India. Such theorisation is \nindispensable in the current context where harsher punishments have been\n offered as a solution by the state to address sexual violence. The \nstate must do more than make punishments more stringent. There is a need\n to oppose the over-punitive approach of the state to sexual violence. \nWe ought to have a deeper and sustained engagement on punishment beyond \nsporadic articulations of objections against the death penalty and \nissues of under-punishing sexual violence. A feminist imagination of the\n criminal justice system in India must account for the tendency of the \nIndian state to over-criminalise and over-punish. Such inquiry will help\n to critique issues of the state over-punishing and under-punishing \nsexual violence.<\/p>\n