Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Issue 2 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here. This piece marks the end of the roundtable discussion on Ms. Preeti Pratishruti Dash’s paper titled “Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi” . In this piece, she responds to the response pieces of Prof. Saptarshi Mandal and Ms. Shruti Iyer.
I am extremely grateful to Prof. Saptarshi Mandal and Ms. Shruti Iyer for their close reading and thoughtful engagement with my paper. Here is my response to both.
I would first like to discuss Prof. Mandal’s concern over the scholarly responsibility involved in discussing the phenomenon of women staging themselves as ‘good women’ and invoking rape law to aid such characterisation. At the outset, I believe that scholarly responsibility would require breaking down of the polarised extreme, making way for a discourse which does not feel the need to paint women as ‘good’ or ‘bad’, but merely as stakeholders in the criminal justice system. In my paper, I aimed to look at rape law enforcement through a legal realist lens, to understand how women, who might find themselves at the margins of society because of exercising their sexual autonomy, choose to invoke rape law. The polarised categories of ‘rape-is-worse-than-death’ and ‘all-women-lie-about-rape’, as with most polarisations, do not afford a nuanced understanding of the use of rape law. Women turning hostile in such cases need not automatically give them the label of ‘false cases.’ Rather, such cases help one understand how the social sanctions for sex outside marriage in a patriarchal society drive the enforcement of the criminal law of rape. Women, as actors in the criminal justice system, thus, strike bargains to maximise their own position in society. This phenomenon is not unique to rape cases, as legal realist scholarship has focused on how societal realities dictate the bargains that actors strike in the ‘shadow of law’.
Given this context, it becomes necessary to go beyond the scope of my paper and think about how increasing carcerality within the system would affect women who seek to strike such bargains. For instance, in the context of rape laws in India, how would mandatory arrests and stipulations on investigations for investigations and trial affect women who file rape charges in breach of promise to marry cases? Further, would the mandatory minimum terms in such cases lead to an increase in false positives within the system? Or would such cases result in high acquittals, further lowering the rate of conviction for rape? As the Indian state’s carceral imagination is only expanding further, those of us studying these issues are compelled to reckon with these concerns.
Coming to the second concern raised by Prof. Mandal, I am in agreement that the rate of conviction cannot be the sole indicator of the ‘success’ of the law reform. Nevertheless, the abysmal rate of conviction for rape in the pre-CLA 2013 era was in fact a point of serious concern for feminists and others concerned with effective law-enforcement. Given this context, one cannot escape the fact that a lower rate of conviction points to the legislation not having a desirable outcome, at least from the feminist standpoint, even if it cannot be the sole indicator of its failure or success.
The final concern that Prof. Mandal raises is similar to those highlighted by Ms. Iyer – that my claims of feminist complicity in the carceral turn are exaggerated. It is indeed true that I have not spoken to the feminists who engaged with the J.S. Verma Committee and participated in the law-making process. Undoubtedly, conversations and interviews would have yielded rich data which would have been useful for an ethnographic account of the feminist journey of law-making in India. However, the scope of my paper was more limited, and therefore, I was compelled to restrict myself to the written submissions of feminist groups to the J.S.Verma Committee. Moreover, as Prof. Mandal and Ms. Iyer both rightly point out, there is hardly one monolithic and authentic feminist voice in India, as feminists speak in multiple voices. Given this multiplicity of voices, the concerns of carceral undertones in feminist responses in my paper are limited only to feminists’ responses to the Verma Committee on the question of punishment for rape.
Missing from the feminists’ submissions to the Verma Committee was an in-depth engagement on the question of sentencing. While feminist groups denounced the death penalty, they demanded life imprisonment without remission or parole (LWORP) for aggravated rape. On the question of punishment for rape, there was no discussion barring the demand for a mandatory minimum punishment. In fact, this rudimentary examination of the question of punishment for rape stood in stark contrast with otherwise rich discussions on issues of recognising sexual violence on a continuum of harm, humiliation, and degradation. In my other work, I have discussed some implications of such a lack of engagement on the question of sentencing, especially in the feminist debate surrounding the Farooqui case. In this paper, however, I make a more limited claim- that the lack of feminist engagement on the question of punishment for rape gave way to a very harsh sentencing regime. I do not claim that feminists who engaged with the Verma Committee are responsible for the carceral turn of the state after 2013. However, in their written submissions, it is hard to miss the pro-LWORP, pro-mandatory minimum stance.
Having said that, however, I am broadly in agreement with Ms. Iyer that there does exist a background and context to the feminist demand for mandatory minimum in some cases. The use of sexist, prejudicial stereotypes to impose less-than-minimum punishment under the older law comes to my mind as one of the most prominent reasons for propelling the demand for judicial discretion. The unintended consequences of these demands, nonetheless, could have been anticipated to some extent, given the vast literature on the subject of sentencing and mandatory minimum. As Dr. Iyer rightly notes, lessons from these turns may be what feminists can hope to take forward in creating alternative visions of justice.
Finally, Ms. Iyer rightly notes that as we discuss the issue in 2021, the space for meaningful dialogue between progressives and the Indian state has shrunk irredeemably. Harsh laws with mandatory arrests and little scope for bail are being invoked to imprison political dissenters and the state is increasingly using the criminal justice system as a weapon to silence all forms of disagreement. While this might mean that groups identifying as progressives and feminists will be compelled to reckon with the reality of the use of criminal law, it also underscores an urgent need for exploring alternatives to the carceral regime. After all, if the criminal justice apparatus is being used to silence all progressive articulations, how can it possibly lead to a feminist ideal of justice for women?