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#India – Delhi #Gangrape and murder ,blacked out by media, scorned by authorities #Vaw

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December 21, 2013

Debby Rai for BeyondHeadlines

New Delhi: As the masses raised their pitch and shouted slogans in the fond memory of December 16 rape victim at Jantar Mantar, the feeble plea of this isolated man got suppressed somewhere. As the much artistic and flashy banners condemning ‘crime against women’ captured a major chunk of eyeballs, the modest white coloured pamphlet tightly held in his hands lost the game!

He is the father of a rape victim who was not only robbed off her modesty, but killed in such a horrendous manner, that probably surpasses the inhuman treatment meted out to the victim of December 16 rape case.

Ironically, both the rape cases took place within a period of ten months of 2012, but media hype and public outcry was witnessed only in the December case.

On the night of February 9, 2012, 19-year-old Aditi (name changed) along with her three friends, was walking towards her home in Chhawla (South-West Delhi)after finishing her office work in Gurgaon.

On the way near Hanuman temple, three boys seated in an Indica started teasing them and tried to drag them inside the car. Except Aditi, all three girls managed to escape and informed her parents about the kidnapping.

“When we asked the officers of Chhawla Police Station to register an FIR, they refused and demanded a vehicle saying that they don’t have one in order to search the girl,” alleged Kunwar Singh Negi, father of Aditi, adding that due to their financial condition, it was impossible for them to provide a vehicle.

After much protest by the localites, the police finally registered an FIR the next morning. Aditi’s mutilated dead body was, however, recovered five days later from the fields of Rewari on February 14, 2012.

“The contents of the post-mortem report are shocking. As if her tormentors were not content after raping her, that they poured acid in her eyes and ears, gouged out her eyes using a chisel and even inserted a beer bottle into her private part”, alleged Anita Gupta, a social activist with Sanjeevani NGO.

Although all the three accused are in police custody now, but according to her father, the judicial system is of no help. “Since a year and half trial in Dwarka Court, this is the third sitting judge and the lawyers never bother to share the case details or even their contact numbers”, Negi alleged.

Anita Gupta added that post the decision to try the December 16 rape case in a fast-track court, they also insisted for the same privilege. “The tragedy remains that the other case being hyped my media got winded up in just nine months, while this one, despite its occurrence in February 2012, is still being dragged in court”, rued Gupta.

She reiterated that this is an ‘open-and-shut’ case, as the chisel, acid bottle and victim’s hair and blood samples were recovered from accused’ car.

“The accused taking the police to the place where they hid the dead body in Rewari is the prime proof of them committing the crime”, she stressed.

Anil Ojha, the then DCP of South-West Delhi could not be reached for further details. The present DCP Suman Goel, however, said that police is not supposed to divulge any such details.

Surprisingly, majority of the women activists contacted by this correspondent denied having either nil or very little knowledge about the case.

 

Read more here- http://beyondheadlines.in/2013/12/a-rape-story/

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#India – CBI chief’s betting remark: Why rape is never a good analogy #Vaw

by Piyasree Dasgupta Nov 13, 2013

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If you had thought that the unnecessary use of misplaced metaphors is the special talent of politicians in India,  think again. Speaking at a CBI conference on corruption, the director of the investigative agency, Ranjit Sinha, said that the micro-industry of betting that the IPL has spawned should be legalised, if it cannot be reined in probably. So that no one was left with doubts about the necessity of legalising betting, he found it apt to refer to another plague in India for what he must have thought would be an analogy with impact – rape. “If you cannot enforce the ban on betting, it is like saying ‘if you can’t prevent rape, you enjoy it’”, Sinha said.

“If we can have lottery in states, if we can have casinos at holiday resorts. If the government can declare schemes of voluntary disclosure for black money, so what’s the harm in legalising betting? Besides you’ll have enforcement agencies to look into it,” he said, adding that its easy to call for ban than to enforce it. Later, a CBI spokesperson clarified that the context in which the statement was made by Sinha was an opinion on legalising betting. Ranjit Sinha at the CBI conference yesterday.

“A voice vote was taken from RM Sawani and cricketer Rahul Dravid and the Director, CBI, made a point if a law cannot be enforced, that does not mean that law should not be there,” the spokesperson said. Without rushing to send Sinha to the intellectual gallows for bringing up ‘rape’ to allude to ‘betting’, one has to say, at least from how he framed his comment, Sinha was trying to underline the futility of having a law on betting and not implementing it.

He did it by likening it with the absurdity of saying something like sexual assault should be enjoyed, if it cannot be resisted. Even if we ignore the clarification offered by the CBI, even from the sentence alone, it doesn’t seem as if Sinha was suggesting that rape be enjoyed if it can’t be fought off. It’s not a malaise typical to India either. In 2010, English boxer David Haye kicked up a storm by when he said in an TV show that in a particular boxing match he was to appear in he would decisively defeat his adversary and to underline how he would trammel his opponent he said that the match would be as ‘one-sided as a gang rape’.

Despite stinging criticism, Haye refused to apologise for his comment. Closer home, Chetan Bhagat who likened to the fall of the rupee to it being ‘raped’ questioned why we bristle at the mention of ‘rape’ when words like murder are used generously to describe everything from a bad film to a badly cooked pasta. However, it doesn’t change the fact that the heedless use of analogies of sexual assault to deepen the impact of comments on issues trivial in comparison to the actual incident of rape, is something that greatly alters the discourse around gender violence in any culture. The thoughtless use of rape as a metaphor for other forms of wrongdoing works insidiously in normalizing a grievous offence like rape in the subconscious of a nation, especially a patriarchal one like India.

Following the Haye incident, Kira Cochrane explained in The Guardian why rape – as a joke, as a metaphor, or as an explainer to something else is not remotely acceptable. She writes: “Aside from suggesting rape isn’t all that serious, these jokes also underplay its prevalence. Estimations of the number of women raped or sexually assaulted in the UK every year are necessarily imprecise, but they range from 47,000 to 100,000.

It is thought that around one in four women are victims of sexual violence in their lifetimes. In telling rape jokes, or throwing the word casually into conversation, there is an assumption that the person you are talking to won’t have experienced this – or that, if they have, you just don’t care about the memories you might provoke, the anxiety you might trigger.”

In a country like India, where we are still struggling to accept and acknowledge the existence of extensions of the traditional definition of rape, in the form of marital rape, child rape and incidents of rape faced by men and transgenders, making light of the incident makes the battle with sexual assault difficult and frustrating. Arguing that it is as legitimate to include ‘rape’ in colloquial vocabulary as it is to include ‘murder’ is wrong at many levels. The absolute nature of people’s perception of ‘murder’ as a crime doesn’t risk fluctuating with the word’s usage in completely different contexts.

On the other hand, an incident of rape, especially in India, is treated with everything from suspicion to condescension directed solely at the victim. In fact, notions about rape in India is riddled with patriarchal prejudices, misgivings about the circumstances that led to the crime and a strong resistance to an open debate on it in both personal and public spaces in the country. Nobody balks at talking about a gruesome murder, children aren’t shooed off when actors are seen beating each other to pulp on the big screen to chopping limbs off on television. But as a rule nobody brings up the issue of rape in front of family or children – given they are as much a risk group as any grown up.

Murder is an universally acknowledged ‘crime’, ‘rape’ maybe not yet. In fact, there are very few popular references to ‘murder’ in the form of jokes, but when it comes to ‘rape’ there are many and at times, they come from the most followed, most eulogised quarters of India’s cultural horizon. Say for example the ‘balatkar’ speech in the roaring success of a film that was Rajkumar Hirani’s Three Idiots.   A speech is tweaked to replace the word ‘chamatkar’ with ‘balatkar’ and a boy, not familiar with Hindi, reads it out to a full auditorium. The character, Silencer, refers to a minister and says ‘usne balatkar pe balatkar kiya‘, ‘umeed hai age bhi karte rahenge’, as the audience cheers lustily.

A comedy of errors? Not so much for a country where ‘balatkar’ is a monster all women are threatened with and many women are brutalised with. The reason why Sinha’s comment is even more misplaced is the fact that he represents one of the country’s highest and most respected guardians of law. Then again, he was speaking in a panel discussion on ‘ethics’ – the discussion he was a part of was titled ‘Ethics and integrity in sports — need for a law and role of CBI.” The use of rape in common parlance ranges from references to everything from a boss’ dressing down of his/her junior to a badly-written math paper.

India is also a country that nurses as many myths about sexual assault as it harbours taboos. In fact, the knee-jerk mass reaction to rape typifies the rut in which India’s moral conundrum is still stuck in – a rape victim is subject to shame, ostracism and often blamed for bringing the assault upon herself. In a moral atmosphere like that, any reference to rape shouldn’t be made in a way to make it seem like a reality of an unfortunate few, or worse still, make it seem like a hyperbole with no extension in real life. It just pushes back the baby steps the country is taking to deal with sexual assault.

Read more at: http://www.firstpost.com/india/cbi-chiefs-betting-remark-why-rape-is-never-a-good-analogy-1226641.html?utm_source=ref_article

 

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India’s muddled thinking on punishment #deathpenalty #delhigangrape

Suhrith Parthasarathy, The Hindu

Not only is the death penalty barbaric and immoral and its deterrent effect unproven, it also contradicts the core objectives of the criminal justice system

Advocating for the abolition of the death penalty in the immediate aftermath of the sentencing in the Delhi rape case may appear morally dubious. What rights do people guilty of so heinous a crime lay claim to, and what do they deserve but death, you might be inclined to ask. But when you apply an immoral law to monstrous criminals, it becomes easier to make comparably iniquitous laws for the rest of us. Capital punishment, perfectly legal as it may be under India’s laws, even if only in a prescriptive sense, runs counter to the core objectives of the criminal justice system. Equally, its application in the “rarest of rare cases”— as mandated by the Supreme Court — speaks to a larger, underlying incoherence in India’s penology.

Beccaria’s treatise

Today’s debate over capital punishment has its broad genesis in 1764 when the Italian jurist, Cesare Beccaria, published his treatise, “An Essay on Crimes and Punishments.” In it, Beccaria argued that abolishing the death penalty was crucial to a society’s progress from barbarity to civilised refinement. “Is it not absurd,” he asked, “that the laws, which detect and punish homicide, should, in order to prevent murder, publicly commit murder themselves?”

Beccaria’s thesis was founded on two central arguments. One, that the objectives of punishment were dual: to deter the future commission of crimes, which the death penalty decidedly did not achieve, and to reform the offenders, which the death penalty decidedly cannot achieve. And two, that the state’s right to take the life of a citizen was illusory, and opposed to the social contract from which it derived its sovereignty.

Beccaria’s assertion at the first level, therefore, comes down to whether capital punishment, by a measure above common imprisonment, deters people from committing crime. “Every act of authority of one man over another that does not derive from absolute necessity is tyrannical,” he wrote. “For punishment to be just it must have only that degree of intensity that suffices to deter men from crime.”

After centuries of debate, the answer to Beccaria’s question remains as clear as it did when he published his thesis. There is no empirical evidence evincing the death penalty’s ability to deter crime; if anything, the converse has been shown to be true. In the United States, for instance, death penalty States have far worse homicide rates than abolitionist States. So given that capital punishment does not act as a deterrent, and given that it cannot reform an offender (who will be too dead to be reformed), the only logical argument in its favour is on retributive grounds.

Yet it wasn’t for such objectives that the death penalty was instilled as punishment for some offences (viz. murder and the highest offences against the state) under the Indian Penal Code 1860. In fact, the only reason murder was punishable with death, while rape was punishable with mere imprisonment, was on deterrent grounds. Lord Macaulay, who drafted the code with painstaking precision, wrote in his notes to the statute that “no argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with [the death penalty].” But, according to him, while many were of the opinion that gang-robbery and rape were offences that ought to be punishable with death, atrocious as the crimes may be, they cannot be placed on the same class with murder. These offences, he wrote, “are almost always committed under such circumstances that the offender has it in his power to add murder to his guilt.” If the punishment of the crime already committed were the same as the punishment for murder, the offender, said Macaulay, would have no restraining motive. “A law which imprisons for rape and robbery, and hangs for murder,” he wrote, “holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured.”

Macaulay’s argument, in spite of its chilling moral nuances, is lucid and logical assuming the death penalty acts as a deterrent. But in the several decades since the Indian Penal Code’s drafting, capital punishment’s deterrent effect remains, at best, unproven. Yet, India continues to retain the punishment. And in doing so, it has muddled a largely rational penology that stood as the basis for its substantive criminal law.

Retaining the death penalty on grounds of retribution alone is flawed at many levels beyond its inherent immorality. In India, while murder is punishable with death, theft is not punishable with a corresponding theft nor is rape punishable with rape. Although retribution does not always envisage an eye for an eye, we see it used as the theoretical basis for the punishment of some offences, while for others the law reverts to deterrence and reformation for justification.

“Rarest of rare” cases

Further widening this penological schism is the Supreme Court’s dictum that the death penalty be applied only in the “rarest of rare cases.” In 1982, a bench of five judges, in Bachan Singh v. State of Punjab, upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the penalty be accorded only in the “rarest of rare cases.” The Court referenced Macaulay, who in drafting the code said capital punishment ought to be sparingly inflicted. But his intentions weren’t to instil in judges discretion in determining which were the “rarest of rare cases.” On the contrary, he was providing a rationale for why the death penalty was restricted only to murder and the highest offences against the state.

Justice Krishna Iyer’s concern, expressed in Ediga Anamma v. State of Andhra Pradesh, that “… it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad-hoc forensic impressionism to decide for life or for death,” went unheeded in Bachan Singh. The “rarest of rare cases” doctrine has, on the other hand, exacerbated the confusion over which cases merit the death sentence. By its fundamental ethos, as Justice P.N. Bhagwati put it in his dissenting opinion, the doctrine is constitutionally flawed. “The question may well be asked,” wrote Bhagwati, “by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21?”

Irrevocability

The strongest, practical argument, however, against capital punishment is its irrevocability. The dangers are most evident from the Supreme Court’s judgment in 2009 in Santosh Kr. Bariar v. State of Maharashtra. Here, a bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that previous judgments of the Court, in which 13 death sentences were validated, were rendered per incuriam, or in other words were rendered in ignorance of the law laid down in Bachan Singh’s case. Out of these 13 convicts, whose sentences were confirmed by a decision that was admittedly incorrect, two have already been hanged. Such episodes are too high a price to pay for a punishment that, all else apart, is ineffectual. What’s more, in a country where an accused’s right to free legal counsel is, at best, a mockery, retaining capital punishment sounds a virtual death knell to the Constitution.

That this debate is still alive in India, however, speaks to an even broader problem: an underlying incoherence in the country’s penology. Hang the murderers and the rapists and we will deter all future crime, seems to be the attitude. “I have raised the demand to award capital punishment to these four convicts,” said the Leader of the Opposition, Sushma Swaraj, after the four men were found guilty in the Delhi case. “If they are awarded the death sentence, it would become a model for the country and effectively curb incidents of rapes.” Such demands for the guillotine shift the focus from far more significant considerations: the maintenance of law and order through better policing, effective, efficient prosecutorial conduct and, most importantly, the need to reform the country’s prisoners. The death penalty is not only barbaric and immoral, it also contradicts the criminal justice system’s core objectives: to reform and rehabilitate offenders while ensuring that the accorded punishment deters others from committing crime.

(The author is an advocate practising in the Madras High Court)

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#Delhigangrape – Why don’t people first control their daughters?: Defence lawyer #Vaw #WTFnews

Written by: 

Published: Friday, September 13, 2013,

'People should control their daughters'

New Delhi, Sept 13: After the death sentence of the four rape accused in the Nirbhaya gangrape case, the one who has topped the news charts is the defence lawyer AP Singh, but for all the wrong reasons. After his hysterical presentation of the Nirbhaya case, invoking the ideologies of Gandhi and Buddha, the defence counsel now blames political pressure. “It is regrettable that the judgement in the case of the December 16 gangrape has been completely dictated by the government. The judge – without giving it due thought and under political pressure, without considering evidence or witnesses – has handed all four convicts the death sentence,” he said. Contesting the reasoning of the trial court, he further said,”During the time I have to appeal – in the next 2-3 months – if there is no rape in this country I will not appeal in the High Court. But, if rapes take place then I will appeal in the HC.” But he does not stop at that. After the sentencing, the counsel said that he would move the High Court as the sentencing was made under the pressure of the home minister Sushilkumar Shinde. But what outraged the media and the people was his unsympathetic statement onNirbhaya and his sharp remarks on her personal life. A tweet by India today says,”Why don’t people first control their daughters? I’d burn my daughter alive if she was having pre-marital sex,roaming around with her boyfriend at night”. It is rather unfortunate that while the entire country is rejoicing justice, its very representative is making such statements.

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