Feminist engagement with the law has received renewed attention in India in the last decade, most of which has centred around the enactment of the Criminal Law (Amendment) Act 2013 following the ‘Nirbhaya’ case, and more recently around the rise of the #MeToo movement. Both moments mark an apparent disjuncture in the Indian feminist vocabulary of justice—the first seemed to indicate a willingness on the part of the autonomous Indian women’s movement to engage with processes of criminal law reform, while the second was marked by a frustration with the false promise of institutions and processes designed to deliver ‘justice’ in cases of (workplace) sexual harassment. This article contributes to existing scholarship in this area by assessing some of the outcomes of the Criminal Law (Amendment) Act 2013, and provides valuable empirical evidence on the hollow promises of criminal law reform.

The Criminal Law (Amendment) Act 2013 was drafted after the Justice Verma Committee’s Report on amendments to the criminal laws on sexual offences was submitted. This Committee had engaged with a range of Indian feminist groups (and at least one non-Indian feminist actor) in drafting its recommendations (Kotiswaran, 2016). The promise of the Criminal Law Amendment Act (2013) that was drafted in its wake was, as Arvind Narrain put it, to ‘alchemize anger to hope’; to amend the criminal law so as to best protect the sexual dignity and autonomy of Indian people. To this end, it had proposed a series of changes that would prevent courts from considering a woman’s sexual history or character, that would criminalize marital rape as well as rape perpetrated by a member of the armed forces in ‘disturbed areas’, among other key demands. The Act itself, however, proved a disappointment on many fronts—it retained the death penalty, lowered the age at which a juvenile could be tried as an adult but raised the age of consent, and retained immunity for marital rape for wives over the age of 15. However, a significant win for feminists who had engaged with the Justice Verma Committee was that rape now covered both non-consensual penile and non-penile penetration, and it introduced several additional grounds for aggravated rape that focused on power imbalances between victims and perpetrators.

The article makes two key arguments. Both are based on an impressive empirical dataset, analysing 1635 rape case judgements from trial courts in Delhi between 2013–18. Among these, it assesses outcomes in two sets of cases—one set adjudicated under the previous law, and a second set adjudicated under the Criminal Law Amendment Act (hereafter, CLA) 2013. The author convincingly argues that the introduction of a mandatory minimum punishment of seven years imprisonment for rape in the Criminal Law (Amendment) Act 2013 may have had the unintended effect of a decline in rape convictions. This, the author argues, is because while Indian feminists harboured a suspicion of judicial discretion which was frequently used to offer more lenient sentences, pushing for a mandatory minimum has likely resulted in a sentence that judges in practice have found too harsh. This argument is bolstered by the author’s claim that sentences shorter than seven years, even for peno-vaginal rape cases, were often imposed prior to the CLA 2013. The article refers to several studies internationally that have linked the imposition of mandatory minimum sentences to a fall in conviction rates, arguing that this foreseeable outcome was overlooked by Indian feminists who demanded the introduction of a mandatory minimum punishment, who supported the maximum punishment of life without parole for aggravated rape while continuing to oppose the death penalty.

The second argument advanced by this article is that the general pattern of acquittals under both laws remain the same. In both sets of cases (under the older law and under CLA 2013), the most common reason for acquittal was that the woman who had originally registered the case had turned hostile. The author points out that many of these are in fact cases of consensual sex that is later termed as a rape case: because the prosecutrix argues that their consent was based on a dishonest ‘promise to marry’ (see Garg, 2019); because the prosecutrix is a married woman filing a rape case against a lover at the insistence of her husband; or because a rape case is filed by family members who oppose a consensual relationship between young couples. In many of these cases, the complainant later turns hostile or drops the case. In a significant proportion of other cases, the reason for acquittal is because the testimony of the prosecutrix is deemed ‘unreliable’—either due to contradictory statements at different stages of the trial, a ‘failure’ to disclose details of the incident to others, or a delay in registering the complaint. A smaller but statistically significant reason for a proportion of acquittals has also been due to the victim being subsequently untraceable—if they left the country, or were migrant labourers who returned home. Further, despite the amendment that enlarged the legal definition of rape to account for non-peno-vaginal penetration, the author shows that in her sample, the proportion of such cases reaching the trial court level are low and typically in conjunction with peno-vaginal penetration. This is a particularly insightful observation, and the thoroughness with which the data is analysed is commendable.

The author powerfully argues that in each of these reasons for acquittal and in the mirroring of the same general pattern of cases, a fundamentally unchanged patriarchal logic is at work that continues to deny women sexual autonomy and grounds the vocabulary of violation in that of honour. In this sense, the article indicates that feminists ought to see the CLA 2013 in many respects as being an unmitigated failure, and hints at the necessity of social and institutional change that must accompany legal reform efforts. As such, the article presents a crucial intervention in the feminist consideration of the criminal law as a driver of social change.

This thought-provoking research leaves us, firstly, with opportunities for further empirical work. More qualitative data that analyses the mode in which such cases are filed and the numbers that drop off before they even reach the trial stage is urgently needed to assess the impact of the CLA 2013 outside the courts. Should we, as the author indicates in one part of the paper, focus more attention on the police’s role in filing cases and framing charges?

This article also allows an opportunity for critical reflection among Indian feminists on the history of and outcomes of our efforts. As a speculative beginning: would feminist engagement with the literature on mandatory minimum punishments, and a principled opposition to imprisonment (or at the very least, life imprisonment) have made much of a difference to the CLA 2013? I argued in previous work that it is perhaps no coincidence that it is where feminists over-rely on the state’s carceral power that their demands have uptake; and where they are critical of it, or seek to limit it, they have had far less success. As Anna Terweil (2020) asks, ‘were feminists too powerful, then, or not powerful enough?’ What might account for this? There seems to be an urgent need to theorize feminist engagement with the state in this light, that places equal emphasis on the state’s drive to expand its coercive reach as well as feminist complicity in these projects. Perhaps the author’s argument that feminists were not conscious of the potential impact of a high mandatory minimum sentence is slightly overstated—she acknowledges in other work that at least some feminist groups were sceptical of harsh punishments (see Dash, 2021). Nivedita Menon, too, stated in early 2019: ‘Feminists did not envisage such a long prison term as minimum punishment, both from the point of view of justice as well as because harsher punishments result in a higher rate of acquittal.’ This points to an inherent difficulty in writing about the Indian feminist movement, which has never operated in a monolithic fashion, but it might open up new research questions. Did all feminists oppose mandatory minimums, or only some? Why?

Asking these questions and building a broader history of feminist engagement with the law might also help us understand better what concerns motivated different demands. For example, the demand for life imprisonment without remission or parole in cases of aggravated rape might emerge less from a mainstream, feminist desire to expand state power unhesitatingly, and may arise as a demand more in order to recognize the experiences and struggles of marginalized women who have been imprisoned, have been assaulted by army or CRPF officers, or have been victims of communal or caste violence. This is not to say that we should not learn our lessons from our reliance on carceral power as a mode of delivering justice, but that contextualizing these demands in the history of the autonomous women’s movement may shed light on why certain strategies were chosen and what injustices they sought to remedy. These lessons may be what feminists can hope to take forward in creating alternative visions of justice.

More importantly, considering these questions in 2021, it might be that this era and mode of civil society engagement with the state is past. We now witness instead the state’s obfuscation of sexual atrocities across the country, as well as its complete disregard for engaging academics, lawyers, activists and retired judges in its latest criminal law amendment efforts. It increasingly seems that the space for meaningful dialogue between progressives and the Indian state has shrunk irredeemably, if it has not ceased to exist. Feminists today are arguably more likely to be jailed for dissent than asked to consult with the state. In light of this, what should contemporary anti-carceral feminist politics look like? Can we afford to abandon engagement with the criminal law altogether? The author’s study itself offers some potential opportunities for liberal policy reform efforts, such as perhaps introducing a lower mandatory minimum or making the criminal legal process more accessible to migrants and tourists. But it may be more intellectually generative instead, along the lines of Critical Resistance in the US, to think of a spectrum of abolitionist efforts—some as ‘reformist reforms’ that rightly ought to be abandoned, and others as ‘abolitionist reforms’ that do the work of reversing feminist complicity in the use of coercive state power and that demands resources for victims of sexual violence instead. As all thoughtful pieces of scholarship do, this paper makes it equally possible to ask a new set of normative questions. What can we imagine? What are we willing to fight for? These are the questions we need to ask each other.

REFERENCES

Dash, Preeti P. (2021) ‘Feminism and Its Discontents: Punishing Sexual Violence in India’, Indian Journal of Gender Studies, 28(1), pp. 7–28. doi: 10.1177/0971521520974843.

Garg, Arushi (2019) ‘Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India’, Social & Legal Studies, 28(6), pp. 737–754. doi: 10.1177/0964663918808069.

Iyer, Shruti (2016) Taking a Break from the State: Indian Feminists in the Legal Reform Process, Journal of International Women’s Studies, 17(2), 18–29.

Kotiswaran, Prabha, Governance Feminism in the Post-Colony: India’s Rape Law Reforms of 2013 (September 5, 2016). King’s College London Law School Research Paper No. 2016-39, Available at SSRN: 

https://ssrn.com/abstract=2834762 or http://dx.doi.org/10.2139/ssrn.2834762

Menon, Nivedita, The Gap Between the Feminist Understanding of Sexual Violence and the Law (24 February, 2019). The Wire. Available at: https://thewire.in/women/sexual-violence-rape-law-india

Narrain, Arvind, The Verma Committee: Alchemizing Anger to Hope (25 January, 2013). Kafila.online. Available at: https://kafila.online/2013/01/25/the-verma-committee-alchemizing-anger-to-hope-arvind-narrain/

Terwiel, Anna (2020) ‘What Is Carceral Feminism?’, Political Theory, 48(4), pp. 421–442. doi: 10.1177/0090591719889946.