In awarding the death sentence in the Delhi gang rape case the Supreme Court falls back on the “tsunami” of shock caused to the “collective conscience”. If “collective conscience” is invoked as a reasonable ground, how will communal attacks, fake encounters, public lynching of Dalits and now Muslims, all enjoying social endorsement, be held unlawful?

From the 1983 judgment of the Supreme Court in Mathura’s case to the 2017 judgment in the December 16 Delhi gang rape case, the issue of absence or presence of physical brutality as a concomitant element of rape, continues to lurk in the judicial mind while determining guilt and quantum of sentencing.

Both cases sparked campaigns by the women’s movement for changes in the law to reflect women’s actual experience of sexual violence, culminating in the Criminal Law Amendment Act, 2013.

The horrific injuries in the 2012 gang rape played a central role in galvanising the high decibel public condemnation of the crime. In this judgment, the brutality and severity of the injuries inflicted by the accused finds repeated echo, and is cited as the overwhelming reason for the court to call this the “rarest of rare” case. To award the death sentence, the apex court falls back on the “tsunami” of shock caused to the “collective conscience”.

Over the past three decades, due to the consistent efforts of the women’s movement there is a grudging understanding of the absolute right of a woman over her body. Even within the courtroom, jurisprudence is developing that a victim of rape should not be viewed with suspicion; most rapes do not leave marks of physical injury; and, by its inherent nature this crime often leaves behind no “evidence” apart from the victim’s testimony.

With brutality and injuries once again taking centre stage, there is an apprehension that even as the din of ‘zero tolerance for sexual violence’ reaches a crescendo, rape has become a spectacle, as an outrage of the “collective conscience”, where the impact of rape is measured by the physical injury accompanying rape; where the abhorrence to rape is calibrated by who the perpetrator is and who the victim is; thus routinely sidelining the understanding of sexual violence as an exercise of power and entitlement.

Ironically, there is a simultaneous backlash which actively feeds the spectre of “false rape cases”, where there is a perceived social reality of women as scheming liars, and a manipulative representation of the law being “draconian”, and rape prosecutions and convictions being “easy”.

It has been argued that the determinative test of “rarest of rare” is inherently arbitrary. When the same is premised on the outrage of the “collective conscience”, it will not only be selective and subjective, but also necessarily majoritarian. The Constitution and the apex court are tasked with safeguarding against a coup d’etat by dominant tendencies. If “collective conscience” is invoked as a reasonable ground, how will communal attacks, fake encounters, public lynching of Dalits and now Muslims, all enjoying social endorsement, be held unlawful?

Source: http://www.hindustantimes.com
Updated On: May 10, 2017