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.