The rape of a 23 year old girl in a Delhi (public) bus has outraged the whole nation. People are seen to be clamouring for capital punishment of those convicted of rape. Actually this incident should have been seen right away as much more than a mere rape case. Belatedly, the police realised their mistake and charged the "gang" with IPC sections applicable to "attempt to murder". The girl was inhumanly brutalised and thrown out of the moving bus along with her companion who was also badly beaten. The girl with a lot of grit is on maximum life support systems and battling for survival at a Singapore hospital where she was shifted from Delhi's Safdar Jung Hospital after 12 days. In this case of rape and abject violence, any punishment would seem to be too little.
As the whole country protests and due to 24 x 7 spot light across dozens of TV channels, the girl and her family will receive no-costs-barred support from the government which is only fair. This blog is about retribution (subject of criminal law) and restitution (subject of civil law). i am no student of law, however, i think our laws are in need of urgent reforms and sadly the legislators need to be far more sensitive to the situation than they are. In this particular case, the popular sentiments also need to be understood and managed (guided?).
Laws need to be designed with a more evolved sense of justice than seems to be conveyed by the agitators and protesters - to the extent it is possible to gauge from the placards displayed and the interviews seen in TV and Press.
Rape, like any other offense, must be understood in terms of its consequences - the impact has to be assessed over all possible dimensions, including psychological injury, physical injury, monetary loss and injury to victim's reputation (at least rape should not be viewed as an episode that dents victim's reputation and robs her ability to live her life with respect and self-esteem)*. Impact may be temporary or permanent, i.e. irreversible. The severity of the impact must also be distinguished by the cost and time required to recover from the injury, if at all. Rape is a very coloured term - one should not design a law which ignores differing severity of impact along different dimensions and pronounces a fixed punishment for any act which qualifies to be called a "rape". Punishment of the perpetrator takes care of retribution envisaged in the sense of justice. But this is not sufficient. More important in the idea of justice is restitution of the victim - and whether the society, i.e. the State should accept responsibility in many such cases.
While applying the above logic we will find
many pointers to improving ourselves and our laws.
1) Bhopal gas case - victims were short-changed
by defective justice delivery - a) compensation claimed from plant owners was
inadequate and b) State was not held accountable and it was not obligated to contribute to
restitution of victims - first was the mistake of the judge and second was
faulty design of the law itself.
2) Nuclear power suppliers' liability law - suffers from defective design. It puts zero liability on state and it puts huge liability on supplier and tries to create an impression that this will be necessary and sufficient for restitution of victims of a nuclear power plant disaster.
3) Delhi Public Bus gang rape case - here we have a set of perpetrators who committed heinous sexual and physical violence. Restitution of victims (the girl and the boy too) is needed by the State as commuters' "physical safety" in public buses is avowedly a State responsibility, to the extent that the bus driver and the conductor are not supposed to be "lunatics or deranged rapists" - and in the incidence of the Delhi Public bus, the driver and conductor can only be described as such - the state patently failed in this guarantee - State must accept responsibility for not failing such bus crew. Therefore, merely asking for capital punishment of perpetrators is NOT sufficient justice meted out to victims.
CONCLUSION - a more evolved and civilised sense of justice would value restitution higher over retribution in dealing with the victims and perpetrators. So laws must speak of
punitive action as well as restitution of the victim - compensation by the
perpetrator AND the community or society at large. Maximum punishment of perpetrators
is not the most import thing to ask for. More important things to ask
for are a) reforms in our systems and laws so that the State becomes liable
to compensate the victim or the family if the victim does not survive -
in those cases where the State's employees or State licensed persons are
involved and b) changing societal norms to reduce the psychological
trauma suffered by victims, particularly female victims in rape cases and c) Speedy delivery of justice - with better trained and equipped police and judiciary.
In the aftermath of case nos.1 and 3, i didn't notice any placard or hear any protester demanding compensation from the State that failed in its guarantee to provide a safe factory in the neighborhood or a safe public transport in the country's capital. In both these cases people who were licensed by the State behaved in a way that caused huge injuries to victims. As a civilised society, should we not expect the State to accept responsibility in such cases and help in the restitution of the innocent victims? The State should have recourse to recover damages from the owners or employers who are indirectly held liable (vicarious liability) - this should be an independent action and not linked to the restitution of the victim by the Sate.
=================================================================* Examples of people who believe rape renders the victim's life useless and by their behaviour reinforce a mindset that drives female rape victims to commit suicide (never does the male victim in "reverse" rape cases get driven to suicide):
1) Shushma Swaraj, leader of opposition in Lok Sabha, cited the Delhi bus gang rape case in a session of the Parliament and said that even if the girl survives she will live rest of her life as a living corpse.
2) Today Times of India reported that Gujarat High Court has ruled on an appeal filed by the convicted persons in the Bijal Joshi’s gang rape case. Bijal Joshi had suffered a gang rape in a New Year party in 2003. "The incident destroyed dignity of life of the victim," the bench said.
The judges also observed that the injury sustained by the victim was a result of "barbarous act" and the mental agony led the victim to commit suicide.
3) Bijal Joshi - the gang rape victim committed suicide after few days of the incident though she had not suffered any grievous physical injury - she was driven to suicide due to psychological trauma and an unjustified sense of shame and worries of what others may think about her.
Interesting reference for those who are die-hard followers of traditions (e.g. patriarchical mindset):
http://www.psychologytoday.com/blog/games-primates-play/201203/what-monkeys-can-teach-us-about-human-behavior-facts-fiction
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