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India: Accused of Apathy, Modi Government Seeks Refuge in Death Penalty for Child Rape

Sunday 22 April 2018, by siawi3


Accused of Apathy, Modi Government Seeks Refuge in Death Penalty for Child Rape

The ordinance will be now sent to the president for his approval.

Photo: A protest against Kathua and Unnao rape cases. Credit: Reuters

The Wire Staff

21.04.18 - 21 hours ago

New Delhi: Ten months after a young girl in Unnao, Uttar Pradesh was raped – allegedly by an influential legislator from the Bharatiya Janata Party – and two weeks after she attempted to commit suicide to protest the failure of the police to act against the culprit, the Narendra Modi government passed an ordinance prescribing the death penalty for those guilty of raping children under the age of 12.

Official sources told PTI that the criminal law amendment ordinance – cleared by the Union cabinet on Saturday in an “emergency†meeting – seeks to amend the Indian Penal Code, the Evidence Act, the Code of Criminal Procedure and the Protection of Children from Sexual Offences Act to introduce a new provision to sentence those convicted of such crimes of death.

In addition, the cabinet also cleared harsher punishments for those who rape girls under the age of 16.

In recent weeks, the issue of child rape has come to the fore as public anger at the inaction of the Adityanath government in UP over the Unnao rape and the support BJP leaders extended to those charged with raping and murdering an 8-year-old tribal girl in Kathua, J&K, boiled over.

The extended silence of Prime Minister Narendra Modi – a leader who is quick to tweet his reactions to all sorts of news events, major and minor – also attracted widespread criticism in India and abroad. Though Modi finally broke his silence last week to assure the public that the guilty would be punished, his refusal specifically to refer to the two incidents was seen as an attempt to minimise the political fall-out from the Unnao and Kathua rapes given the perception that his party had helped shield the culprits.

Death penalty a deterrent?

Women’s rights groups and criminologists have repeatedly maintained that the answer to heinous sexual crimes against children is not the death penalty but the strengthening of the investigation and prosecution process so that the perpetrators can actually be convicted of their crimes in the first place.

According to data gathered by the National Criminal Research Bureau (NCRB), the conviction rate of those accused of sexual crimes against girls in 2015 was only 34%. Of the 5361 trials completed in 2015, 1843 ended in conviction, while 3518 led to the acquittal or discharge of the accused.

As the Unnao case demonstrated, it is often the refusal of the police to register a complaint and investigate the crime properly that is the primary obstacle in the survivor’s struggle for justice. Even if an investigation is launched, the political connections of the accused can lead to pressore on the police to back off. This is the script that played out in Jammu as BJP leaders joined the ‘Hindu Ekta Manch’ and other Hindutva-oriented outfits to protest the arrest of those accused of that crime.

‘Don’t politicise rape’

This week, Modi drew rare international criticism at the diplomatic level when Christine Lagarde, the head of the International Monetary Fund, publicly demanded that he do more to ensure the safety of women and girls in India. She said this was her personal view.

In his interaction with an invited audience in London on Wednesday, Modi urged people not to “politicise rape†. In December 2013, incidentally, Modi, who was then the chief minister of Gujarat, had urged Delhi residents “to remember Nirbhaya when you go to vote†– a reference to the rape and murder of a Delhi woman when the city was ruled by a Congress government.

Last week, another incident of the rape and murder of a young girl surfaced in Surat, Gujarat.

The ordinance cleared by the cabinet on Saturday will be now sent to the president for his approval.

Critics of the death penalty – which has backing cutting across party lines – say that the certainty of capital punishment is also likely to lead child rapists to murder their victims in order to reduce the chances of being caught and convicted.

“There is no evidence to suggest that the death penalty acts as a deterrent to rape,†a group of women activists write recently in an open letter to Swati Maliwal, head of the Delhi Commission for Women, who has been on a hunger strike demanding the death penalty for child rape. “Available data shows that there is a low rate of conviction in rape cases and a strong possibility that the death penalty would lower this conviction rate even further as it is awarded only under the ‘rarest of rare’ circumstances. The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.â€



Backstory: How Do We Get Justice for a Raped Child?

A fortnightly column from The Wire’s public editor.

Photo: “Am I next?” A girl holds a placard during a protest against the rape of an eight-year-old girl in Kathua, near Jammu, in Kochi on April 15. Credit: Reuters/Sivaram V

Pamela Philipose


What sets the crime of rape apart from other crimes is a simple reality: that this is a crime perpetrated not in any particular location – it is the raped child’s (or person’s) body that is the crime scene. The implications of this go beyond forensics, impacting as they do the way we frame the story of such a crime in our minds, and the manner in which we report it.

In one of those mind-numbing coincidences that surface from the tangled skein of everyday developments, we have today been forced to confront two criminal violations perpetrated on female bodies, one in Unnao, Uttar Pradesh, the other in Kathua, Jammu and Kashmir. While the two cases are dissimilar, there were common aspects: a time-lag in the media coverage crystallising the substantive aspects of the case.

Take the Unnao case, the survivor – believed to have been 16-years-old at the time – alleged that she had been raped by Kuldeep Sengar, a BJP MLA, in early June 2017. Unsurprisingly, the police refused to file an FIR in the case; unsurprisingly too, the local media, which take their cue from the khaki-clad, also did not go beyond stating the bare bones of the story.

If they had reported on this crime in a way that indicated the power relations at play, the serial catastrophes that visited the family of the survivor may not have taken place. The manner in which her father, in his quest for justice, was beaten black and blue in full public view almost a year later – provided a view of the dystopian machinations that mark chief minister Adityanath’s Uttar Pradesh which wears its 1000-odd police encounters as a badge of honour. What’s important to note here is that even evidence of this violence was not provided by investigative journalists hungry for news exposés, but through leaks of video footage.

In the case of the Kathua savagery, the news made it to the local media in the state by January 17, by the next day it was figuring on the front pages of local dailies and slowly permeated national media. Jansatta was possibly the first among the national newspapers to cover it. Yet, most of the initial news was focused on the arrest of the young rapists and the anger in the local community. The case was quickly framed as another face-off between Hindu-majority Jammu and the Muslim-majority Valley.

In fact, the well-organised, politically influential, ruling party-patronised community in Kathua, in southern Jammu, draped nationalism over themselves like a flag, and their black-coated mentors from the Jammu Bar Association made it their business to direct the protests, and certainly the local media coverage. Incidentally, this is just one more instance of lawyers functioning as the gendarme of the ruling party. One need just recall the way in which journalists covering Kanhaiya Kumar’s appearance at the Patiala House Court Complex were physically attacked by lawyers who passed themselves off as bearers of “national interest†(not to speak of Kumar himself, whose life stood threatened at one point). To date, these black coats have not been punished for their black acts.

In Delhi, senior women MPs stoutly defended party colleagues who had joined in the protests in Kathua. As one writer in The Wire put it: “Ms Lekhi and Ms Gandhi display neither shame nor horror at this awful fact only underlines the cynical callousness of the BJP, who send women members out to defend the indefensible, their government’s inaction against alleged rapists because they are linked to the party†(‘The Disquieting Nature of BJP’s Response to Violence Against Women’, April 14. Also see a useful compilation of statements from BJP leaders, ‘From Callousness to Whataboutery – BJP’s Reactions to Unnao and Kathua’, April 13). It’s another matter that the prime minister decided to speak out his long-awaited words condemning the rapes shortly after their statements, leaving his party’s female praetorian guard with egg on its face.

In Jammu, the Kathua gangrape was consistently framed as a “conspiracy of the national media to show us (Jammu residents) in bad light†; that it was really a “trial by media†(‘BJP Sacrificed Two Jammu Ministers to Support Hegemony of Kashmir: Jammu Bar President’, April 17). In actual fact, it took almost three months for the country to turn its attention to the slip of a girl, all of eight years, who was abducted, drugged, gangraped and brutally murdered. I am not exonerating The Wire here. Most of its coverage came only at a time when media platforms, in general, had turned the spigot at full flow on this story. It was no thanks to the media that the Kathua story assumed the proportion it did. If the J&K Police had not filed a detailed chargesheet; if courageous lawyers, including the very inspiring Deepika Singh Rajawat – a Kashmiri Pandit herself, who has been associated with this case since February in the face of widespread intimidation – had not pressed on with their charges, this case would not have touched our collective consciousness in the way it later did.

As in the Unnao instance, here too there were powerful political forces close to the locus of power anxious to control media content. But while the Unnao case rose from feudal impunity, the sexual and social preying by the rapist on a family he publicly characterised as “nimn star ke log (low-status people)†, the Kathua case went far beyond personal dimensions. As the writer of ‘The ‘Bare Life’ of the Eight-Year-Old Girl from Kathua’ (April 17) pointed out, here was the coming together of “the brazen and public display of support for the perpetrators of the crime by the ruling party, and its appropriation as a nationalist act through an open mobilisation of the Hindu majority†with a “strategic and clinical†silence from the Modi government, until that silence became untenable and the void had to be filled by some ineffectual and delayed words of regret. The “little girl was thus not just the object of brutal gender and sexual violence, but also of the violence of the nation-state, of rape as a political tool.†A pre-planned assailment used for “state-making†. This was a rape used as a means of targeted ethnic cleansing of the Bakarwal community, as well for “pleasure and sport…†(‘The Little Girl of Kathua’, April 16). Amidst the enormous attention that this crime attracted were Facebook posts by young men, who projected themselves as proud Indians, exclaiming that such a rape must have been “fun†(maja).

The piece entitled, ‘From Kathua and Unnao to Chintagufa, the Law Won’t Act Against Powerful Men’ (April 16) ends with the line: “…these are all young daughters of our country. This country will survive only if they do.†The J&K Police’s unvarnished chargesheet spares no details and in its pedantic officialese creates feelings akin to a flailing despair. Somewhere, the broken body of an eight-year-old seemed to bring on the anxiety that perhaps “this country†, the one we are familiar with, with a constitution illustrated by Nandalal Bose and Republic Day tableaux that celebrate “unity in diversity†, has already receded into the space of legend and folklore. “India is in the midst of a crisis†, say the writers of ‘The Canary in the Coal Mine’ (April 15). A group of 49 civil servants write in, “This is a moment of existential crisis, a turning point – the way the government responds now will determine whether we as a nation and as a republic have the capacity to overcome the crisis of constitutional values, of governance and the ethical order within which we function†(‘Modi’s Handling of Kathua, Unnao Rape Cases an ‘Existential Crisis’, say Former Civil Servants’, April 26).

There is a desperate search for new language to express the horror, whether it is through public installations of broken dolls or the reading of poetry. ‘The little girl did not know the difference/
Between lure and love, trust and betrayal…/She did not know, invisible lines are drawn/
To harm people who live without walls†(‘The Nomad’s Daughter’, April 15).

The question is what happens once the words cease, and the darkness settles around us once again, as it had settled around the inert body of an eight-year-old in a freezing season? As a lawyer, Rajawat is not sure. She expresses an anxiety over the media gaze shifting away once again: “…right now, the national media is following this case. But, how long will that last? What after that?†(‘Modi Should Rein in His Party Men, Says Lawyer for Kathua Girl’s Family’, April 16). Can anyone in the media answer her questions?


Serious questions about the mysterious circumstances surrounding Judge Loya’s death were flagged in a video interview The Wire did with the political editor of The Caravan magazine, which had broken the story. The interview (‘Watch: Hartosh Singh Bal and M.K. Venu Discuss Dismissal of Judge Loya Case’, April 19) was particularly well-timed, coming as it did a few hours after the Supreme Court chose to dismiss a petition seeking a probe into this mysterious death. The Caravan has been criticised for “scurrilous journalism†for this investigation, drawing a sharp rejoinder from Bal, that this was shooting the messenger rather than engaging with the message.


Nihal Singh, who passed away recently, was an editor who stood tall, keeping a keen and critical eye on the national and international scene. Rejecting benign retirement, he used the time left to him to call out tyrants and interpret contemporary realities. There was ink in his veins all right, as the title of his autobiography, Ink in My Veins, indicated. Singh was one of those few editors who never hesitated to offer his resignation in the face of management intransigence and control. Half a decade ago, Singh’s older contemporary – Pran Chopra – was fired from The Statesman for refusing to conform to the management’s position on the government in power. Singh resigned after confrontations with the management on no less than three occasions. This legacy of defiance is important to remember at a time when editors carry government “to-do†lists, rather than resignation letters, in their pockets/handbags.

Resignation letters signified a belief, old-fashioned though it may sound, that journalistic standards trumped personal interest. Perhaps there is a parallel here between those resignation letters of yesterday and determination to fight defamation suits today (‘Jay Shah Story in Public Interest, What Settlement Can There Be, Asks The Wire’s Lawyer’, April 18).


A medical opinion on the torture of the Unnao rape survivor’s father (‘Unnao Rape Case: CBI Arrests Woman Who Lured Victim to BJP MLA’, April 15) has come in from Dr V.G. Sharad, a reader of The Wire: “A perforation cannot be missed. There is nothing called a “small†perforation. It can be detected through a physical examination of the abdomen. An X-ray of the abdomen would also reveal it. Importantly, if the perforation is due to trauma, the patient usually dies of hypovolemic shock. For septicemia to establish itself, the perforation must be at least 48 hours old and must remain untreated. The facts of the present case would suggest that this is a custodial death or a murderous attack on the patient.â€