The Men Who Raped India’s Nirbhaya Will Hang — But That Doesn’t Mean Justice

The rape and murder of Jyoti Singh haunts Delhi. It hovers in the landmarks of the southern part of the city—an overpass, a mall. It is commemorated as a yearly time of mourning and renewed commitment by feminists and rights activists. It hovers in the back of your mind at night, when you board a bus.

And it has come, once more, into public debate. On May fifth, after a four and a half year journey through the criminal justice system, the case against Singh’s killers came to a possible end. The Indian Supreme Court sentenced four of the rapists to death by hanging (one remaining attacker had committed suicide; another, a juvenile, had already served his time). While claps rang out in the courtroom following the pronouncement of the verdict, many feminists challenged the imposition of the death penalty.

As we struggle to articulate a vision of justice not just for Singh, but for all sexual assault victims, and for the many oppressions that enable and compound sexual assault, we must ask: What does genuine justice for sexual violence mean, beyond and besides the death penalty?

The Fearless One 

Jyoti Singh is Nirbhaya, “the fearless one,” as she was dubbed by the media until her parents gave us permission to take her name. On December 16, 2012, on her way home from seeing Life of Pi with a friend at the upscale Saket Mall, she was raped and brutally physically assaulted by a group of men on a bus. Two weeks later, she died from her injuries.

The legacy of feminist response to the case has been felt worldwide, from the progressive (though as-yet meagerly-implemented) Justice Verma report giving comprehensive recommendations for combatting gender-based violence, to increased international attention to violence against women.

Many conservative Indian politicians used the attack as an opportunity to reiterate their message of women’s need for protection in order to preserve their honor and respectability. In contrast, feminists argued that what happened to Singh was a horrific manifestation of the brutalities inflicted upon women in a patriarchal caste and class society. They called for the abolition of both violence against women and restraints on women’s freedom, so that women could experience “bekhauf azaadi,” or “freedom without fear.”

The Global North media, meanwhile, tended to phrase the attack as an example of India’s patriarchal backwardness, rather than as a worldwide issue—an angle many  women of color feminists critiqued.

Since the verdict, the debate has turned to the issue of justice. For Jyoti Singh’s parents, the hangings are a desired punishment— a grief that must be respected.

But many feminists, lawyers, and human rights commentators have raised questions about the standards used in Indian death sentence deliberations, in which judges may uphold death sentences in crimes representing “rarest of the rare” brutality which shock the “collective conscience”—a dangerously majoritarian category. They argue that the death penalty is an act of tokenism which appeases a dominant morality without bringing about broader change.

In a system that often minimizes and ignores violence against women, why did Singh’s murder so shake the “collective conscience” that the perpetrators were sentenced to death?

What Shocks the Collective Conscience

What was so frightening, what was so resonant about the attack on Jyoti Singh—I have heard several times from young, middle class Delhi woman—is that she was murdered doing something so normal.

The geography she tread that night—the shiny Saket mall; the cinema hall; the hustle to get home—is familiar to many a middle or upper class young woman in Delhi. I too have made this journey dozens of times: Leaving the mall just after nightfall, the air conditioning of the glossy inside giving way to dusty heat; the clamor and hassle of trying to get a rickshaw…

I’ve heard the sentiment echoed in both casual conversations and research about the event: There was, among many protestors and reporters, a feeling that Singh was “one of us.”

And it is horrifying: That on a normal Sunday night, you may be tortured and killed merely for being a woman. It’s a horror that woke many women up, that helped us connect the dots of the daily experience of patriarchy and other systems of oppression to instances of terrifying violence.

But what of the victims whom the media does not consider “one of us”? Does the collective conscience quake for them?

In a painful irony, the verdict in Singh’s case came out the day after the verdict in another case of brutal rape and murder: The gang rape of Bilkis Bano during the anti-Muslim pogrom in the western state of Gujarat in 2002. For weeks following a fire which killed dozens of Hindu pilgrims in a train, the streets of Gujarat burned as mobs looted, raped, and murdered Muslims. One to two thousand people, most of them Muslim, were killed.

During the riots, Bilkis Bano and her family, who were fleeing the violence, were attacked by a mob. The mob murdered five-month-pregnant Bano’s 3-year-old daughter, raped her and several of her relatives, and killed 14 members of the family. For fifteen years, Bano has been fighting corrupt policemen and doctors, and a hostile criminal justice system, to have her day in court.

The day before Nirbhaya’s attackers were given the death sentence, Bano’s were sentenced to life in prison.

The fact that Bano’s attackers have been punished is a rare instance of justice served for a survivor of anti-Muslim mob violence, and it is strenuously-achieved one. But commentators duly ask: Why did the courts deem what happened to Nirbhaya a sufficient incitement to the collective conscience to warrant the death penalty—but not what happened to Bano?

While horror over Singh’s death took the form of vociferous public protest, Bano’s living struggle received little attention from civil society and active pushback from the halls of power. Bano is a Muslim woman, the member of a much-demonized minority. She was attacked during a series of riots whose depth and brutality of violence has been suppressed. As further evidence of the collective conscience’s amnesia, the man who presided over Gujarat at the time the riots, whom many suspect to have been complicit in them, is now Prime Minister of India.

There are some instances of violence the collective conscience wishes to remember; others which it tries to forget. This, as many commentators point out, is the fundamental flaw in such a standard. As human rights lawyer Vrinda Grover writes, “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?”

There are hundreds of cases like Bano’s, thousands —not just in India, but all over the world. In areas of India where the military has special powers, for example, sexual violence by soldiers is underreported—and rarely prosecuted. Their names rarely make the mainstream press: The mass rapes at Kunan and Poshpora in Kashmir. Police rapes of indigenous women. The sexual violence committed against Muslim women during the 2002 Gujarat riots—many victims of which did not live to fight their cases.

The men who raped Nirbhaya were poor; they dwelled in Delhi’s slums. They did not enjoy the protections of money, power, or government connections. To the lawyers and journalists of the middle class, they were not, in short, “one of us.” This does not explain or excuse what they did. But it does, perhaps, help explain why they were sentenced to death for it.

That impunity is enjoyed by the powerful and agents of the state is unsurprising to any watchful American; we see the same thing in our military and criminal justice systems. The statistics from India and the United States on who, exactly, is incarcerated—and who ends up on death row—are eerily similar.

In India, 80% of prisoners facing capital punishment did not finish school; nearly half began working before the age of 18. Dalits, Muslims, and indigenous people, all of whom experience systemic discrimination and lower relative economic status, are disproportionately incarcerated and sentenced to death—with Muslims, who make up only 13% of the population, 30% of incarcerated people.

In America—where we incarcerate the highest percentage of our population in the world—55% of people awaiting execution are of color; 42 percent are black, almost three times the percentage of black people in the general population. And while one half of murder victims are white, 80% of the victims of death row cases were.

People from all backgrounds commit horrible crimes. But it is, by and large, the oppressed who hang.

Visionary Justice

The answer is not, of course, that all rapists or murderers be hanged. The death penalty should not exist, and many of the commentators in the Indian media make precisely this argument.

In achieving justice, we can can look, rather, to the ongoing results of the 16 December movement: To the progressive recommendations of the Justice Verma Report, including the call to take sexual violence in the family, marital rape, and non-penetrative rape seriously. To a continued call for justice for sexual violence during occupation and conflict. To the the sustained activation of thousands of young people into feminist struggle.

Jyoti Singh deserves to be mourned. But the world should also mourn victims of violence in Kashmir, in Iraq, in a Bombay slum, in a Baltimore jail, in the riots of Gujarat, in the deserts of the US-Mexican border.

Jyoti Singh deserves justice. But until we can realize a system of redressal which seeks to eliminate all of the inequalities that enable and become embodied through rape—poverty; racial inequality; religious hatred; war—we will not have justice. Not for Singh and not for the thousands like her, those we have heard about and those who haunt us with a horror that remains suppressed.

We can imagine, and demand, society-wide justice for sexual violence. The sweep of vision of the 16 December movement offers one glimpse of what that justice could be. And that vision will remain living.

Cover photo: IB Times