Elusive State, Restless Society
Nirbhaya
Rape, Dimapur Lynching and class contradiction in Indian society
Two
events of this week- controversy over documentary ‘India’s Daughter’ based on
Nirbhaya’s gang rape case, and the lynching of a rape accused in Nagaland by a
mob of more than thousand people, has brought the issue of relation between the
Indian state (here only I am concerned about the justice system) and a restless
society (the restlessness was most visible in the crushing defeat of the
Congress Party in 2014 Lok Sabha election) in public discourse. In Indian
context it has something to do with the entrenched
class bias in which we Indians have lived from time immemorial.
Societies
have existed from centuries. However there are certain functions that must be
performed if a society has to survive, and one of these functions is the
‘maintenance of law and order’. Earlier, before the arrival of modern state,
societies had built certain institutions to maintain order, and it was the
threat of feud, leading to extinction of the entire society that played the
most important role in maintaining order. The modern state having ‘monopoly
over the use of force’, whereas ‘non-state actors cannot take law into their
hand’, is recent phenomenon in the history of mankind. In modern state-centric
societies the state took up the role of punishing the accused, and providing
justice to the victim. The reason this switch over from society-centric to
state-centric justice system was, that many times the force used against the
accused was disproportionate to the crime committed, and sometimes innocents
were the victims of vigilantism.
This
gave birth to the modern justice system and court. There are certain principles
on which the modern justice system functions. Firstly, justice would be swift,
since ‘justice delayed is justice denied’. Secondly, the victim would get
justice and the culprit would be brought to book. Thirdly, an accused is
innocent till he/she is proven guilty. In modern state-centric societies
vigilantism is considered illegal and hallmark of a backward society.
First,
I would discuss the way the justice system vis-à-vis rape has functioned in
India. It won’t be totally incorrect to say that the justice system has not
lived up to the ‘expectation’, of victim’s families, as well as for a section
of people. This dissatisfaction from justice system has been growing in recent
times, whereas people think that the justice system has been lenient towards
the accused and cruel to the victim. The Nirbhaya case, which drew world-wide
attention and outrage can be used to understand this process. Three years have
passed since the heinous crime took place, but no one knows when the victim
would get justice. The case is with the highest court of the land, but from the
past one year nothing has happened. The rape accused are on the death row and
living under acute ‘mental torture’.
What
is the people’s perception about this particular case now? People suspect that
after a year or two the death penalty would be confirmed by the highest court.
But the confirmation will come only when a particular ‘time gap’ between the
award of death penalty by the lower court, and its execution schedule has taken
place. After that ‘someone’ would approach the court and the court would
pronounce another verdict which would commute the death sentence to
life-imprisonment. The logic would be that the culprit has been on death row
from long time, and has already lived a life worse than death. The ‘enlightened
people’ would cite European cases (very smartly not American case where death
penalty is not only legal but is very much active in practice) to defend
commutation of death penalty into life- imprisonment on the ground that the
state has no right to kill anyone. Thereafter the death sentence would be
commuted to life-imprisonment, and ultimately, sometimes in future, the accused
would be on the basis of having ‘good behaviour’ during the prison years. Just
see what happened to Surinder Koli, the perpetrator of Nithari rape cum murder
of more than a dozen children from lower class. After he was awarded death
penalty and had exhausted all options to save himself, suddenly Allahabad High
Court commuted his death penalty into life imprisonment.
The
second issue relates to the class bias in Indian society. Hierarchy is inbuilt
principle of our social order and that is very much manifested in rape cases.
Almost every victim of rape comes from the lower and lower middle classes. But
the state and the judicial system is controlled by the upper classes (through
Supreme Court) - judges, advocates, human right activists, academicians. This
class has been totally insensitive to the culture, value and needs of the lower
classes. For this upper class, publically championing the interests of the
lower class is just a means to legitimise their higher position in society. To
cite an example to make the issue clear. When it came to Teesta Setalvad, the
top advocates ensured that she was saved from the custodial interrogation. The
same law that has been invoked to ‘extract’ information from lower classes
became blasphemous in Teesta case. The upper class considers the lower class
not only totally different from them, but also less human who are born to be
humiliated, killed and raped. This leads to travesty of justice. The
Fundamental Right as enshrined in the Constitution (Article 14) about not only ‘equality
before the law, but equal protection of the laws within the territory of India’
has remained sham.
This
complex relation between a state controlled by the upper class and denial of
the justice to the lower class has brought restlessness among the people,
particularly those who have been the victim of this duel administration of law.
For the lower classes how the judicial system functions is becoming mysterious,
though we are supposed to be living in an era of right to information and
transparency. Once people know that it is almost impossible to get justice,
they are forced to take law into their hands. Only recently the women MPs,
while raising concerns about the documentary India’s Daughter, demanded that if
the judiciary is incapable in punishing the culprits, the culprits should be
handed over to them. The killing of a rape under- trial by the mob in Nagaland
is sad commentary on the way the upper class managed justice system and the
state has functioned. History shows that men have rebelled only when a
perception grows that the institutional arrangements that has been created to
provide justice to them has failed. The sooner the upper class controlled state
and judiciary take note of this fact the better it would be for the state as
well as society.