The rule of injustice

The Hyderabad sexual assault and murder and the extra-judicial killing of the suspects by the police force have elicited a strong response from Indian society and its diaspora on the issue of criminal justice. Perhaps the most insightful comment comes from the Chief Justice of India, Sharad Arvind Bobde, who denounced the actions of the Hyderbad police as an act of revenge and not true justice.

The Chief Justice is not incorrect in his comments. Firstly, it is difficult to hold police accountable vis-à-vis their duty of conducting a fair and impartial investigation in the case of extra-judicial killings. Under political pressure to apprehend the perpetrators of a heinous crime immediately, a police force may select vulnerable targets to pass off as the perpetrators, rather than conduct a lengthy and potentially time-consuming investigation. A fact-finding enquiry may establish that the Hyderabad police had correctly identified and apprehended the perpetrators. This, however, does not diminish the importance of establishing that faith of public in the fact that the police shall, regardless of political considerations, investigate all cases objectively and generally abide by the law.

Secondly, one cannot ignore the popular notion that perpetrators of such heinous crimes should be put to death (implying that it makes no moral difference in the case where the perpetrators were killed by the police). This ignores the importance of inquiring into the suitability of a particular punishment. Even a young student of law can state with confidence, the proper justifications of punishment — to deter future criminals, to ensure retribution, to prevent further crimes by dangerous criminals or to provide an opportunity of rehabilitation to the accused. Selecting the punishment with the most appropriate justification is not easy because it involves striking a balance of various considerations of justice (such as the socio-economic background of the victim and the accused or the overall trends in society as regards the incidence and reasons behind the commission of the concerned crime). For this reason, it is the duty of a court of law alone to elaborate on the appropriate punishment in criminal matters. The police force does not have the mandate to determine the punishment for the perpetrators of Hyderabad sexual assault and murder. Nor should a loud opinion among ordinary citizens, who have no experience in regulating the behaviour of criminal offenders and maintaining order in a complex and heterogeneous society, determine the ultimate outcomes of an independent and impartial judicial system.

While acknowledging the Cheif Justice's special reference to the suspects killed by the Hyderabad police, his observations do not fully address the sheer injustice meted out to victims of sexual assault. The overall quality of trials in sexual assault cases in India is deplorable. The latest report of the National Crime Records Bureau (pertaining to the year 2017), indicate that nearly 86 per cent of sexual assault cases remain uncontested at the end of 2017, with a conviction rate of only 25 per cent in the remaining cases. Courts of law, particularly trial courts, do not ensure the bare minimum standard of justice for victims of sexual assault. Given the pathetic state of affairs, the bitter sentiments within the Hyderabad police force and the public against the perpetrators are understandable, if not justifiable.

The deficiency in India's judicial system to address sexual assault cases is not attributable merely to poor infrastructure or insufficient capacity to address the case overload. Why do such horrific crimes occur at alarming rates in the first place? The answer is undeniably the political apathy in building a culture where all citizens feel genuinely responsible to regulate their own sexual conduct and respect the consent of other citizens.

Consider the typical profiles of sexual offenders touted by Indian administration in response to each sensationalised case of brutal sexual assault. One example is that of the man of a lower socioeconomic status. The prevailing notion is that brutal sexual assault is likely committed by underprivileged men, particularly those living in city slums because of the exclusion they face in a society that is increasingly becoming economically unequal. Another profile is that of the paedophile. Yet another profile is that of the 'depraved monsters' who assault and physically harm women who are their acquaintances, dates or family members because they ( the culprit) is different from ordinary men. Such offender profiles are disproportionately represented in popular media, leading most Indian citizens to have a very narrow and unrealistic idea of the wide variety of ways in which sexual assault may occur.

Therefore, the implications of these typical offender profiles are clichés – that victims are often women; innocent women were in the wrong place, at the wrong time and in the wrong hands; "genuine" victims are either children or women with child-like innocence and that sexual assault is an exceptionally rare crime and is only committed by degenerates. Educated members of Indian society are aware that there is more to sexual assault than such clichés (for instance, that consent can be withdrawn during sex or that marital rape is harm that ought to be given severe criminal sanctions). Less privileged members of Indian society have no clue about the true nature of consent. As a whole, there is an informal understanding that the legal system does not deliver certain justice against perpetrators and that all citizens (regardless of their gender) must at all costs prevent themselves from becoming victims of sexual assault, even if it means attempting the impossible task of predicting fate itself.

Press reports of Indian authorities following sensationalised cases of sexual assault repeat these stereotypes ad infinitum. In this process, we fail to notice the true failure of our democratic institutions in engineering a safe society, let alone efficiently prosecuting sexual assault cases. A responsible government would spend a sufficient amount of public revenue to aggressively campaign to men and women on the importance of obtaining consent from their potential sexual partners. Every society has its share of delinquents who are likely to disregard the consent of others but a mature government understands its duty in raising sufficient awareness on consent and warning potential perpetrators of the severe consequences of sexual assault. In the latest statement of expenditures by the Ministry of Women and Child Welfare (2017-18 estimates), less than 1 per cent of the Ministry's expenditure (of approximately twenty-four lakh crores) was used to fund the activities of the National Commission of Women (merely tens of crores), the institution responsible for leading programmes and framing policies to address violent crimes against women. There are no nation-wide schemes formulated by the Ministry to promote awareness of consent. Nor is there a comprehensive campaign to improve the public infrastructure such that victims are consistently ensured efficient disposal of sexual offence complaints (regardless of the political significance or media popularity of the case).

Wider political, social and economic freedoms for women are not merely welfare handouts by the government, such freedoms are indispensable for the survival of Indian society in a rapidly changing world. The government cannot instruct several millions of women in India such that they must avoid the entire city (including their place of work if possible) during night-time or that they must behave exactly like imaginary 'pure' women. It is not moral for the Indian administration to silently permit citizens to entertain outdated notions on how women should behave. Equally immoral is for an administration to publicise its swift and strong action in only the rarest and most reprehensible cases of sexual assault. Such an attitude enforces the notion that cases of sexual assault are not morally urgent except when victims have been brutally murdered or disfigured. It also deprives a vast majority of victims of sexual assault from much-needed support and remedy. These victims cannot demonstrate physical signs of sexual assault but must silently endure their trauma.

The lack of meaningful nation-wide initiative to protect the choice of a citizen not to be forced into a sexual act should be viewed as our collective embarrassment, in contrast to countries that are able to address sexual assault more effectively with fewer financial resources at their disposal. In addition to the proceedings against the extra-judicial killings, it is important for the government to immediately address widespread resentment by ensuring the safety of all citizens in public and private spaces.

Roopashi Khatri is Assistant Professor of Tax Law at National Law School of India University, Bangalore and Special Counsel at CounsePro Law Firm, Bangalore. Views expressed are strictly personal