Today we hear from guest blogger Professor Dr Debarati Halder of the United World School of Law, Karnavati University, India and Founder of the Centre for Cyber Victim Counselling.
Introducing the case of Nirbhaya
In 2012 “Nirbhaya” a young female paramedic was brutally gang raped in a cold December night in Delhi, India. Within a few days, the police arrested the 6 offenders who were from the northern parts of India who had relocated to Delhi to make a living as transport workers.
Within a few days of their arrest, the victim died. The charges against the accused were enhanced from rape to include murder under the Indian Penal Code. The prime accused then committed suicide.
It took around 10 months for the trial court to convict the accused and sentence the surviving 5 accused to the death. The death penalty was upheld by the Supreme Court of India in 2017. In between, one of the accused pleaded to be considered as minor and was declared as minor and hence was dealt under the Juvenile justice administration system. Neither the Supreme Court, nor the high court, prevented the accused persons from exercising their rights to appeal against the capital sentence. The Supreme Court considered this case as rarest of rare cases. Except for the minor, the other convicted accused did not succeed in their respective pleas to the Supreme Court to reverse the sentence to life imprisonment and the President for mercy petition.
All four of the adult convicts were hanged in the early hours of 20th March, 2020.
The fate of women left behind criminal acts
The convicted persons in the NIrbhaya case were from all from a disadvantaged socio-economic backgrounds. Only one had completed basic education. Some investigations, including the controversial India’s Daughter documentary, claimed that lack of education could have been the main reason they defied the laws for violating women.
While almost all commentary was concerned about the perpetrators, not many looked into the fate of the wives of these sex offenders. They also may not have received primary education and may not have been allowed to access justice for themselves because of being women living in patriarchal societies. Punita, wife of one of the offenders Akshay Thakur, tried her level best to convince the courts and the society at large in her own way that if her husband was hanged, she and her minor son would have to die. On the final day of hearing, she was seen shouting, crying, beating herself and fainting before the Supreme Court building. Her actions attracted media and may have added to media ratings. Soon she made headlines in almost all domestic and foreign news channels and she was center of debates for and against death penalty. Simultaneously she was targeted by internet trolls vigorously.
In the recently held 9th international victimology conference organized by Jindal institute of Behavioral Sciences, I addressed the issue of cyber victimization of Punita through my paper titled “Critical analysis of the case of wife of Nirbhaya rape convict: therapeutic jurisprudence & cyber victimological perspectives”. While the media could successfully (and probably rightly) generate public sympathy for the rape victim and her family, they generated extreme hatred to Punita because she was apparently ‘supporting her husband’.
The internet platforms added fuel to the fire in this hate campaign. News reports on Punita Devi on the social media handles of the news media channels showed extremely negative comments and profile. Such comments and profile will no doubt impact her future including her ability to get work in the public or private sector. This visual victimization of Punita on cyber space exists on cyber space and will exist forever. In my earlier research on visual victimization of women on cyber space, I had observed that the victims of such visual victimizations may now know about their online victimization because they may never get access to the internet and digital communication media as their urban counterparts may get, which may eventually help the later to reach the criminal justice machinery to remove these contents.
Women such as Punita are often seen as ‘co-accused’ by the public at large. Women in such situations are often unfairly blamed by the families and public at large for failing to satisfy their husbands sexually and materialistically and by doing so encouraging the later to sexually assault other women. Coming from socio-economically disadvantaged communities and being educationally challenged, wives of sex offenders in strongly patriarchial communities, may not be allowed to access justice for themselves. Apparently, Punita approached the family court in her native district for divorce because the Hindu Marriage Act under S.13B(2ii) allows women to get ‘quick’ divorce under special grounds which includes conviction of husband for rape, sodomy, bestiality etc. But she was too late in approaching the court. She did not want to live as a widow of a hanged rapist. She preferred to be a divorcee. Women like Punita cannot press for divorce while the trial is on because this would not only attract social taboo, it will also push such women to extreme poverty: they have to leave the matrimonial homes, they may not be accepted in their parental homes and they may not get any financial support from anyone.
How can Therapeutic Jurisprudence help?
Justice Krishna Lyer, a legendary judge who introduced new paradigm to reformative justice in India, mentioned about applying therapeutic jurisprudence in the prisons for reforming the prisoners in 1970’s. But after him, we did not get to see the use of the term by the judges while dealing with reformative criminal jurisprudence in India. In much of my research and writings, I have shown that the concept of therapeutic jurisprudence has influenced many Indian judges.
The spirit of therapeutic jurisprudence may help wives of sex offenders especially in countries like India. In my research titled “Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model”, which was published In the edited book volume titled Methodology And Practice Of Therapeutic Jurisprudence Research edited by Stobbs Nigel, Bartel Lorana & Vols.M, I had observed that women, especially from socioeconomically disadvantaged communities, may not be permitted to access justice even if the legal counseling is freely available through free legal aid clinics. This situation may be improved by vigorous campaigning by legal aid volunteers and law students. The law students, practitioners and judges must be sensitized about therapeutic jurisprudence and law’s therapeutic effects which may bring tremendous change in women empowerment.
Wives of sex offenders go through tremendous traumatization primarily because they feel cheated in their marriages and then feel threatened when it comes to social security for them. In my presentation at the international victimology conference mentioned above, I have proposed that courts should also consider the appointment of parallel counsel for such wives through free legal aid so that they may be made aware about their rights for divorce, matrimonial alimony, child custody and maintenance for child.
Further, I have also proposed that courts must of their own motion consider to make restraining orders against media regarding airing the images of grieving wives, who may or may not be accompanied by their children. These women do not make any ‘drama’ to stall the execution of sentences for supporting their husbands. They express their anger, frustration and fear for their own future which is dependent on the longevity of their husbands. Unfortunately, their expression of fear and frustration etc are consumed sadistically by the society at large and due to the non-ending presence of the clippings on the internet, such women may be profiled in a negative way.
I have proposed that the scope of “right to be forgotten” must be expanded in such cases which the courts must take up extending the power of judicial intervention to protect the privacy rights of women. Interestingly many courts across the globe are shifting burden to the website companies for removing objectionable contents especially when it comes privacy of women and children. India has laws for website liabilities in this regard under S.79 of the Information Technology Act, 2000(amended in 2008). This provision read with Information Technology (reasonable security practices and procedures and sensitive personal data or information) Rules 2011 mandates that web companies shall be held liable if they do not take down objectionable contents within due time.
This brings two major points to be considered: Who reports it? And whether this can be considered as ‘protected speech and expression’? Indian judicial understanding regarding freedom of speech on internet is expanding and courts have started using judicial discretion to not consider each and every speech as speech falling outside the purview of Article 19(1)(A) of the Indian constitution which guarantees freedom of speech and expression as a fundamental right. It is obvious that women such as Punita would not know about such legal jurisprudence. The courts therefore, must consider adding this issue in the bag of ‘reformative and rehabilitative considerations’ when awarding the sentences (including life sentence or capital sentences). This may go a long way to prevent secondary victimization of the wives of sex offenders who are ‘innocent victims’ of the entire situation.
It is therefore hoped that if the issue of online as well as real life victimization of the wives of the convicted sex offenders are seen from the therapeutic jurisprudential aspects, the rights of women to access justice, rehabilitation and privacy may be secured.
Prof (Dr) Debarati Halder, LL.B, LL.M, Ph.D(Law) (NLSIU) is the Professor-Legal studies, United World School of Law, Karnavati University and Founder of the Centre for Cyber Victim Counselling. Debarati is India Chapter Head of the International Society of Therapeutic Jurisprudence. She is the pioneer in introducing Therapeutic Jurisprudence as a part of credit course in legal education in India. She can be reached via email: firstname.lastname@example.org
For more, see in Profiles: Who were the Delhi gang rape convicts?. Published in https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus On March 20. 2020, accessed on 21.03.2020
Banned film India’s Daughter shown in rapists’ slum. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020
Example of comments https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020
Conference proceedings and my presentation are available https://www.youtube.com/watch?v=c9__aYyD9cA
Halder D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the Human Safari YouTube Videos (2012) and its Effects. British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.
Section 13(2)(ii) in The Hindu Marriage Act, 1955 states “A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground………. that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality”
See Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018). United World Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175