‘Justice’ in the Nirbhaya Verdict

Swati Parashar | 21 March 2020

Delhi protests by Nilroy is licensed under CC BY-SA 3.0

The four men guilty in the Nirbhaya Rape Case were hanged at Delhi’s Tihar Jail, in the early hours of 20 March 2020. The Nirbhaya Rape Case occurred in 2012, attracting global attention due to the brutality of the sexual assault and the protests that had erupted all over India in response. Women had had enough! The case lingered on, for 7 years and 3 months to be precise; the courts deferred the execution date a few times resulting in bizarre petitions and re-appeals even hours before the hangings. It is important to remember that there were six perpetrators of this most heinous of crimes: one ‘hanged’ himself in prison, months after being caught (a ‘suicide’ preceded by possible sexual assault in the prison that has not been investigated enough), while another was tried under juvenile law, served time in a reform centre, and has since been rehabilitated into society. Meanwhile, it has been an ordeal for Nirbhaya’s parents to work with their legal team to witness the eventual outcome for those who inflicted devastating injuries on their unsuspecting daughter, who eventually died from these injuries. We have mourned with Nirbhaya’s family all these years, in the hope that some form of justice is possible, enabled through enough public awareness and activism.

The Nirbhaya case was always in the limelight, and both the media and the general public played a significant roles in keeping it that way. As much as the media can be criticized for influencing public opinion in this case, one must remember that Nirbhaya’s family comes from a class and background where ‘justice’ is not easily available to victims of any crime. Her parents are from a low-class migrant background, working hard to ensure education and a better life for their children. The role of an active media meant that every detail of this case was reported and people began to use legal language in everyday conversations. The misogynistic public statements of the lawyers defending the rapists may have appeared shocking, but served as valuable insight into the patriarchal mindset in India. The last-minute court dramas were intriguing and frustrating. The legal process, at times, seemed like a theatre with different scenes being enacted. Cases and petitions were filed on behalf of family members of the convicted men, seeking euthanasia, divorce, etc. It was all poorly scripted and painful to watch, an indictment of both society and legal institutions and processes in general.

Hangings are not celebratory events, and one should avoid gloating over them. There are bound to be conflicting emotions, and a difference of opinion about capital punishment being a deterrent or not as well as ideal forms of justice; the role of the state and society will and should be questioned. One issue that needs to play a central role in discussions of capital punishment is that rape laws in India were revised in 2013, after the Nirbhaya case. Today, any sexual assault that inflicts injuries resulting in death or disruption of normal healthy physical life is treated as a crime fit for rigorous imprisonment of at least twenty years, life imprisonment or the death penalty in the ‘rarest of the rare cases’. The death penalty was not leveled against Nirbhaya’s rapists for rape alone, but for the ultimate death of the woman who did not survive the violent assault. The activism around ending capital punishment (which is desirable and implemented by many countries) has to be more systematic and prolonged, demanding institutional changes and a responsive law and order system. It cannot merely contribute to the hysteria around specific cases and then disappear until the next death penalty is announced.

One also wonders about the ‘juvenile’ who escaped the noose and severe punishment only because the written law saw him as a few months short of adulthood. For the most heinous of crimes, he served three years in a corrective centre and is now working as a cook, according to some reports. Now that his partners in crime have forfeited their right to life for the same crime (only because of a different birth certificate), will his conscience prick him for the rest of his life? Was the quantum of punishment and its execution justified in this case, given that his co-offenders were hanged? We will never know.

This case had affected us all, viscerally, and one can argue that despite the protests in 2012, India continues to witness the most brutal forms of violence against women and girls across the spectrum. Justice eludes, in most cases, and this state of affairs is not likely to change because four convicted men were hanged; we all know these hangings will be no deterrent. I am thinking of the Priyadarshini Mattoo case, where the culprit, Santosh Singh, completed his law degree in prison, even got married despite the conviction— that’s called social rehabilitation, yes?— was frequently out on parole (to celebrate birthdays and other events) and got his death penalty reduced to life. Mattoo’s mother died recently, perhaps a broken mother whose daughter did not get the ‘justice’ she would have found comforting, simply because her attacker was from a wealthy and powerful family and could navigate the legal system better than offenders who belong to a different class. There are so many other parents and loved ones who await some form of punishment, retribution or justice that can heal their wounds. In the absence of corrective measures and societal accountability; and when adequate restorative and reparative justice are not enabled; when there are hardly any social consequences for rapists (many have thrived and survived, rehabilitated by society despite being convicted by courts!); when legal processes seem out of reach for most with limited resources (we all know Nirbhaya’s lower-middle-class parents would have been able to fight this alone, without any public/media support and state’s intervention); when the stigma of sexual assault and abuse has always been borne by women/girls and their families; when justice seems a distanced possibility for many (as visible in the #metoo cases or for example in Jharkhand, my home state, which records high levels of violence against women and girls and we see no form of justice; one can never forget the case of the 16-year-old girl who was burnt alive in 2019, after she complained of rape); when many cases are still unreported, and abusers and perpetrators (‘known’ and ‘familiar’ more than strangers) are living with impunity, and with privileges, I am willing to take comfort in Asha Devi’s sense of closure.

Nirbhaya’s brave mother, Asha Devi, believes that justice was done today and that might be an important take away for many of us. In these most distressing, confusing of times, with profound uncertainties; when we are not even sure that our reactions make sense, or capture any moral ground or contribute to intellectual debates, I am willing to be comforted and guided by Asha Devi’s words:

‘This struggle will continue. My daughter isn’t here anymore, but I’ll continue to fight for all women in the country. Let’s hope that no daughter goes through anything like this.’

We have a task at hand: to enable justice for all victims and survivors, to demand accountability and transparency from our state institutions and to expect responsiveness and compassion from a society that has so far treated victims worse than offenders. Sexual violence won’t end anytime soon and neither can our fight against it.

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Keywords: #Sexualviolence, #Rape, #Nirbhaya, #India, #CapitalPunishment, #Hanging, #Justice, #Gender

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Swati Parashar is acting Director of the Gothenburg Center of Globalization and Development (GCGD) and Associate Professor in Peace and Development at the School of Global Studies, University of Gothenburg, Sweden. Follow her on Twitter @swatipash.