The Aparajita Amendment – Law School Policy Review

Aastha Nayak: In today’s episode, we sit down with Miss Monika, who researches feminist theory, sexual violence, and law at the University of Cambridge, and Miss Atreyee Sengupta, a scholar of law, gender, and society in South Asia from SOAS University of London.

Our conversation dissects the West Bengal government’s swift legislative response to the horrific RG Kar rape incident—the Aparajita Amendment passed unanimously amid intense public outrage. This amendment introduces some of India’s most stringent penalties for sexual assault.

We move beyond the headlines to critically examine the legal, political, and feminist dimensions of this movement. Does this law represent a genuine step towards gender justice, or is it a performance of state power that substitutes populist punishment for structural reform? Our conversation explores the tensions between the urgent demand for accountability and the deep-seated critiques of carceral feminism, asking what this legislative flashpoint reveals about the future of anti-rape advocacy in India.

Miss Monika and Miss Atreyee, we’re honored to have you on our podcast today.

To begin with the context of the bill, the Aparajita Amendment was passed unanimously and swiftly following the immense public outrage after the horrific RG Kar incident last year. While responsive governance is valued, what are the potential dangers of creating criminal law under such intense public and media pressure? Does this lead to robust, well-considered policy, or does it risk prioritizing popular sentiment over sound legal principles?

Monika (6:46): Hello everyone. First of all, thank you so much for inviting us to this podcast and for doing this very important work. I think all of you are putting in your after-work hours to do this, so thank you so much for this initiative as well.

To your question, let me begin by saying that there’s no yes-or-no answer to this, right? So let me first acknowledge that there are real dangers associated with making policy under intense public pressure, but so are the dangers of formulating policy in a vacuum without any public input or scrutiny, right? We have seen this, for example, very recently in the case of the recent overhaul of India’s criminal and evidence laws, where the government has refused to release the white paper detailing public consultations. Even though it claims that this is a result of extensive public consultations, we don’t know what the consultations were like, right? So that opacity also should raise concerns.

If this is a concern that we are talking about now, protests and public outrage are not monolithic, right? They are never homogeneous. They are never even temporally static. So voices come in and they exit. The kind of protest that happened in Kolkata were not the same as the kind of protest that you would see in Delhi. The kind of protests that happened within Kolkata—in hospital premises by hospital staff—had a very different tone and demand than what happened in the streets by the general public. So the question of whether public outrage results in good policy making depends largely on which sentiments gain prominence as being recognized as populist sentiment, right? Even within a single movement, there can be competing voices.

For example, following the RG Kar incident, there were legitimate and important demands around workplace safety and safety of health workers in general. But soon the discourse was overtaken by a sensationalized focus on rape itself—a kind of pornographic indulgence in the bare facts of violence—which then led to highly populist demands for corporal and capital punishment. So what we are seeing in terms of state response is a form of carceral populism where the state responds to public outrage through severe punishment but does not do anything to address the structural issues.

So I would personally say that it really depends on how the public scrutiny and public mobilization is capitalized upon by the political actors. What do they intend to do with it? Whether the intention is to address long-standing issues and the structural issues which lead to violence against women, or is it just a mere political stunt?

Atreyee Sengupta (9:33): Thank you so much for having us and thank you so much for putting in all this work. To just add to what Monika said—all very important points—is that we also have to be mindful of what kinds of cases lead to such huge public outcry to which the government then has to give a knee-jerk response.

When in the Nirbhaya case, we saw the kind of changes that were brought about. Of course, at that point, when the Justice Verma Committee was deliberating over the reforms, there were actually consultations with feminist organizations, lawyers, groups, et cetera, which did not happen in this case at all. And we see the result of the difference between the report of the Justice Verma Committee and what we see here in this particular amendment.

You can see that the state hastily just wants to deal with this particular case and cases of extreme violence which require a lot of public attention and outcry, and then just leave it at that. Dealing with individual cases of extreme violence then become the only cases that require such kind of quick action on part of the state, and it then goes on to consolidate the carceral power of the state rather than actually dealing with any structural issues of violence.

Diya Ranjith (10:59): Thank you for that response. I had a question about the context and the aims of the bill. The Aparajita Amendment is an instance of how a state legislature has exercised a greater degree of power in amending punishments for certain offenses for terms greater than what is prescribed in the BNS. In your view, should states have more autonomy to increase the severity of punishments and penalties based on local context? Or does this risk fragmenting the uniformity of the criminal justice system across the country?

Monika (11:43): To approach this question a bit critically, I personally think that fragmenting itself should not be an issue in a country as large and as diverse as India. But it is very interesting to see in what areas the union is amenable to divergence of power and what are the areas in which it is not amenable to that idea.

There has been a longstanding issue in India about federal distribution of power between center and the state, and this increases when the central government is in power with a majority. This is the case right now, and more so in the previous tenure. We have seen episodes of constant federal disputes emerging, especially with the state of West Bengal—for instance, whether it be with respect to CBI’s intervention or the governor’s intervention in state politics.

Right now, there seems to be a silent consensus over the state legislature going ahead and amending the provisions of BNS, even though it has not received presidential assent so far. And the trends show—because there have been attempts by other states also to increase carceral powers, to basically make punishments harsher. For instance, Maharashtra and Andhra Pradesh in recent past tried to do that, but then the president did not assent to those bills. So hopefully this bill will also not receive assent.

But in the Legislative Assembly, it was passed unanimously, including the BJP being a supporter of the bill, right? So no party at this point wants to show that they are not serious enough about the issue. And if you look at the history of criminal law amendments, the state’s way of showing that they are serious about the issue is to increase punishments, to enhance punishments. And it’s a brilliant way for the state to have the cake and eat it too. So it is projecting itself as being the protector of individual rights and safeguarding individual rights and safety. At the same time, they are also in the process of expanding their carceral powers, right?

So a short answer to your question would be that fragmenting itself is not an issue, but what is the state trying to do by exercising its power, which it has under the constitutional arrangement to amend any central law, including criminal law? But what is it trying to do with it? And once any state makes an amendment to a central law, it has to also adhere to the broader guidelines and the broader framework under which it is working.

So one would be the international treaties that we are party to and we have ratified. So UNCEDAW being one, which mandates that the state is not supposed to only focus on punishment, but prevention, accountability, facilitation of a support system for a victim. But there’s absolutely no discussion on all those other fronts, right? Similarly, there’s a sentencing jurisprudence established by the Apex Court, and this bill completely contradicts that, which we’ll be discussing in some time. So a mindless focus on enhancing punishment is not going to justify or credit the state’s right to amend laws.

Atreyee Sengupta (15:07): Yeah. And I think, as you said, it’s also important to look at how even uniform criminal legal systems are not ideal systems that we should be looking at. We should not be looking at uniform criminal law systems as something that’s ideal, let alone look at how the states are now consolidating power by trying to amend and intervene in this central legislation. So I think we need to be very, very mindful of the carceral power of the state and how it feeds into the criminal law and how the criminal law is basically this instrument of consolidating this carceral power rather than looking at how only the states do it, but also in a sense, the criminal law itself is such a tool of carceral power.

Bala Yamini (15:58): Following from Miss Monika’s mention about how there’s a tension between the Indian jurisprudence and the state legislation’s current laws, I wanted to ask that the amendment appears to move towards mandatory punishments. It mandates death sentence where rape results in the victim’s death. How does this compare with Indian jurisprudence, which struck down mandatory death sentences as unconstitutional for violating Article 14 and 21?

Monika (16:35): Okay, so let’s just first discuss what the bill does. How is it increasing the ambit of mandatory punishment and also providing for mandatory death sentence? So it’s doing multiple things which are absolutely wrong.

So first is that for ordinary and non-aggravated rape, they have completely collapsed the distinction by providing the same punishment for both ordinary rapes—or rapes which are non-aggravated—and aggravated forms of rape, right? So under BNS, the punishment for non-aggravated rape was 10 years to life imprisonment, and the Aparajita Bill amends it to reduce the discretionary ambit of sentencing and also enhance the punishment in that process to a minimum of life imprisonment or death penalty, which is the maximum punishment.

Similarly, it provides the same punishment for custodial rape and rape by anybody. Punishment ranges for aggravated penetrative assault and non-aggravated penetrative assault against minors, ordinary rape, custodial rape have all become punishable with the same punishment which I just mentioned, right? This heavily reduces judicial discretion and has also undone years of feminist struggle with law, which tried to bring into focus the context in which harm is inflicted, right? And we’ll discuss about this a little more.

But the third thing that it does is—this is what has faced the most outrage from the feminist and legal community—it provides for mandatory death sentence where rape results in vegetative state or death of the victim, right? Now this used to be 20 years to life imprisonment or death sentence under both Section 376 of IPC and Section 66 of BNS, right?

So you see, one of the most highlighted aspects of this bill has been that it is providing for harsher punishment. But it’s not just that—there’s a complete lack of understanding of principles of punishment whereby you give harsher punishment for harsher kinds of harm inflicted, and you also take into account not just aggravating factors, but aggravating and mitigating factors. And this bill completely collapses all these distinctions and completely does not take into account these factors, which therefore contradicts the Supreme Court jurisprudence on sentencing, which was laid out in Bachan Singh case, which tried to provide a framework for individualized punishment so that punishment can be afforded on a case-by-case basis, taking into account the aggravating and mitigating factors.

Similarly, by providing for mandatory death sentence, it contradicts Article 21 and 14, and this was first pronounced by Mithu case of the 1980s, which held not only that providing mandatory death sentences is violative of these fundamental rights, but it also said that it’s a kind of legislative overreach because you are in a way eliminating judicial discretion from sentencing, right?

So they are completely overlooking all these precedents established by Apex Court and also the kind of struggles that feminists have fought which led to this distinction between aggravated and non-aggravated forms of rape to highlight that rapes which happen by people who are in position of power and trust over the victim has to be taken more seriously, because there’s a clear power differential involved in the context in which that rape happens, right? This distinction came in the 1983 amendment after the feminist battle after the infamous Mathura judgment. So all of that gets undone.

It also contradicts the Law Commission reports, most importantly the Justice Verma Committee report which recommended against death penalty, recognizing that it never acts as a deterrent, and also the 262nd 2015 Law Commission report which called for abolition of death penalty and restricting it only to cases of terrorism.

Atreyee Sengupta (20:46): Yeah. And it also then shows us that it’s not just that the bill has no understanding of what feminist perspectives are, but also basic legal precedence, legal reasoning, or striking down something like a mandatory death sentence. All of these signs of legal precedence are also absolutely ignored, and that again points to us that this kind of hasty amendment that comes into being—how effective would that be in leading to an investigative process and a trial that would then uphold conviction?

So again, it goes back to the feminist fear of the fact that severity of punishment being increased would reduce the chances of conviction in cases, which is why they had come up with this idea of a graded system of punishments for different forms of rape, as Monika pointed out, acknowledging that in certain cases the power dynamics in rape has to be recognized, like in custodial rape, for instance. So that kind of distinction being collapsed creates even more difficulty in terms of trials also.

Aastha Nayak (21:59): So the Act also mandates extremely short timelines for investigation, which is 21 days, and trial, which is 30 days, and establishes a special Aparajita Task Force. From a practical standpoint, are our investigative and judicial systems equipped to meet these deadlines without compromising the quality of the investigation or the fairness of the trial?

Atreyee Sengupta (22:23): I think the short answer is that no, our systems are not equipped to deal with such short spans of either investigation or conducting trials. And this then shows how the state is also overreaching in the sense that it has no realization of the fact that it itself is ill-equipped to do this kind of investigation in such a short matter of time. And that means that if the investigation is not done thoroughly, then when these evidences go to the court, the trial will also collapse. So ultimately, this reduction of the span for both investigation and for the trial will not help the complainant or the victim in any way, because it will lead to more suspicion in terms of what kind of evidence have been collected, whether or not they are according to the principles of natural justice.

So all of these things will come up and ultimately it will be counter-intuitive to what the main idea is—to ensure that the trials are done following due process so that the complainant’s feeling of being retraumatized is not faced again. But that is something that the bill doesn’t seem to be concerned about at all by only talking about this very fast action in terms of both investigation and trial.

Monika (23:46): Yeah, absolutely. I would echo Atreyee’s point that this is completely delusional on the part of the state regarding its own capacity and state of affairs with respect to the institutional capacity to handle trials as well as investigation.

So first of all, about the 21 days of investigation—I’ve been doing my PhD fieldwork in Delhi in the rape courts in Delhi. And one of the things that if you ask the prosecutor as to why the conviction rate in rape cases is so low, one of the first things that they say is that it is because of the weak investigation, the flimsy investigation. Investigation is the weakest thing. And this is something that feminists have also pointed out time and again—that investigation is the weakest link in the entire prosecution case, right?

So as Atreyee said, if you make the timeline for investigation so small, it will result in haste. Haste in the investigation will in turn weaken the case for the prosecution, right?

Secondly, the tendency to settle cases out of court will increase because the police officers will be disincentivized to file another case and be bound by 21 days of investigation, which is of course very difficult with the kind of police force and the understaffing that we see in the police to handle, right? So it might increase out-of-court settlement, which is a problem which already exists with respect to rape complaints, right? It’s very difficult to get an FIR filed in the first place.

The second thing about the 30 days of trial—it’s really delusional. I mean, I’ve been working in fast track courts and there are cases dated, FIRs dated from 2015 and 2019 coming to trial in 2024-25, right? And these are years taking for a trial to happen in a fast track court. Even in Nirbhaya case, which is one of the most high-profile rape cases, the trial went on for more than 250 days. So 30 days is extremely delusional. There’s no ground reality vision. That is why it is important to ask the government: what are these consultations? What are the findings? I don’t know what this is based on. How do you come up with this number—30 days, right?

Also, again, even if let’s say it’s possible to do it and let’s say the idea is to make sure that it’s not indefinitely delayed, the point is that you cannot isolate one procedure of the criminal justice system and then expect it to act as a solution. So to give you two examples:

One is that even if you make trials time-bound, the thing is that because of this digitization and medicalization of sexual violence adjudication, there’s so much reliance on forensic evidence, and the FSL laboratories are so overburdened that there’s no way in which the FSL report will come on time. And because the adjudication is so heavily dependent on those reports, on the forensic evidence, then there’s no way in which you can conclude a trial without an FSL report, right? So it’s impossible to understand what is the reasoning that has gone behind making trials time-bound.

The second example I wanted to give was that the bill also provides for making the investigating officer compulsorily a woman. Now under the existing act, it is provided that the investigating officer has to preferably be a woman. And I think this has been done in recognition of the fact that the number of women who occupy police forces is abysmally low. In West Bengal, it’s less than 10%. Even the national average is somewhere around 11 to 12%. So how do you expect a woman IO, a lady IO to be allocated to each rape complaint that comes up, right?

So as Atreyee said, this just shows an utter lack of consideration about the capacity of our criminal justice system and the kind of pendency that we are dealing with in the various courts of the country.

Atreyee Sengupta (28:03): Just to add to that, even though Internal Complaints Committee has 90 days to do its inquiry and complete its inquiry and give a report, one is expecting the criminal system, which is very much reliant on evidences, to not have even a 90-day window to do their inquiry and hoping that that kind of evidence will stand in the court of law.

And the other thing I wanted to add was that in terms of the task force that they’re talking about, I think Soumya‘s article talks about how there are no guidelines in terms of what will be the powers of such a task force and how do you maintain accountability? So there again, the role of the state then becomes questionable, right? What kind of power will the state extend to this kind of a task force? If there are no accountability measures that are written down into the bill, how will this function and what influence will they have in terms of this investigation? Because we already discussed how there is a conflict in terms of the federal and the union in terms of CBI and other procedures. So what will be the result in case of such a task force where the state is mandating it and there is no accountability measure that is written into the law?

Diya Ranjith (29:35): My next question is going to be about understanding the state’s response to the RG Kar incident. The West Bengal Criminal Law Amendment has been labeled as the ‘Aparajita Act.’ This nomenclature invokes the figure of an undefeated woman. What does this reveal about the state’s approach to sexual violence? Does this naming function as a form of narrative control or image management? How do we reconcile the symbolic performance of justice with the state’s actual handling of sexual violence, especially considering the fact that it is operating within elite and politically connected institutions?

Atreyee Sengupta (30:19): Yes, definitely. The name itself is the symbolic idea of this woman who is an extraordinary woman, and that has been a sort of device that states have been using for a really long time. Even in terms of public outrage, even if you look at how the night protests and other protests that happened after the RG Kar incident talked about the woman—it’s either Tilottama or Abhaya or Aparajita in this case. So this kind of making certain cases of sexual violence exceptional lets us ignore how routine it is, actually, how structural it is, how the everydayness of that violence gets masked under this one case that then gets so much of public attention and the state’s response to that public outrage.

And as far as the performativeness of justice in case of the state, I think states always engage in this kind of politics because the state inherently is such a violent institution that most of the injustices that we see—social injustices—are actually inflicted upon its population by the state. So in order to mask that violent face of the state, the state then engages in this kind of program of gender justice, where it’s talking about swift action. So the idea is not to change anything structurally, but to, on the face of it, bring about these kinds of conversations around the fact that they are passing these bills—the Aparajita Bill.

And because in India we have this very inherent enchantment with the state, there is always the hope that the state will take some action to give us justice. But states seldom do that. The state’s idea of justice is very performative, is very much to have certain control over the bodies of its population.

And I think the part where it becomes even more clear is when you look at previous cases of sexual violence that have happened in West Bengal, which have also been talked about and well documented. Even those cases are well documented, the state’s reaction has not been the same if you think about the Park Street case or the Kamduni incident where there were very much heightened sexual violence that had happened, but the state’s response and neither the public’s response was this much because they thought there was a clear political nexus between the government in power and the people who were involved in those cases, and the state hopped on that and tried to mask that violence and its complicity in violence, as opposed to this case where it could not because the public outrage was so much because, of course, due to the fact that the woman concerned is somebody who belonged to a respectable profession, was attacked and murdered at their workplace, which is again a respectable place. It’s not a street, it’s not a random street in Calcutta or outside of Calcutta in West Bengal. But it is a hospital, a working space where they were there for a certain reason and they were not just there because they were just existing, but they were there to do a certain kind of noble work because they are a doctor.

So all of these then tell us why the state reacts to certain incidents in a certain manner, and the fact that its engagement with justice is very much performative in all cases. So we need to be very, very skeptical of when we are relying on the state to offer us any semblance of justice.

Monika (34:01): Absolutely. I agree with everything that Atreyee said and there’s absolutely not much to add. But I agree that this tendency to immortalize victims is something that you see time and again. And pedestalization politics has historically severely compromised social reform outlook, even if you look at the history of the national movement, right?

So it’s extremely problematic because there’s a need to also recognize victimhood. Again, this is something that I’m speaking about based on my interviews and informal conversations with survivors, that one of the things that they constantly resent is that their victimhood is not recognized either because of this loud discourse that most of the rape cases are false, so they don’t believe in the rape allegations in the first place, or because of these kinds of politics of symbolism, right, where a woman, the victim, is just projected as a sacrificial figure which has to die a brutal death for the social transformation discourse to set in.

So I absolutely agree with everything that Atreyee has said, and the impunity with which the hospital authorities were acting till this public outrage and the huge media coverage happened shows that there’s not much to actually reconcile between this symbolic posturing from the state and this attempt to do narrative control and the way they handle cases. So if there was no public outrage, I’m sure the hospital authorities would be roaming around with impunity because they tried to first showcase it as a suicide case, then the head of the medical department within the medical college tried to also tamper with the evidence. And there was a denial of rape also in the beginning. Of course, it could not sustain for long, and it does sustain in other cases. And why that happens is something that Atreyee very well explained. So yeah, not much to add.

Atreyee Sengupta (36:03): Let me just add one point—that the West Bengal government particularly has been trying to portray themselves as this government which thinks a lot about women’s concerns and wants to represent women in all aspects of the government. But again, we saw in this particular case where TMC is one of the parties which has the highest number of women MPs actually. But despite that, you do not see any kind of action taken by those MPs when such an incident occurs, or in case of any kind of sexual violence or sexual harassment that happens in the state, they have nothing to say or do about those incidents at all. And then there again we get into how the state operates with certain optics and symbolism rather than actually having to change something structurally.

Aastha Nayak (36:59): So just to better understand the state’s response, with the Aparajita Amendment collapsing sentencing gradations and prescribing the same severe punishment across cases, do you both think the element of deterrence against escalating violence is weakened? Could it inadvertently remove an incentive for the perpetrator to spare the victim?

Atreyee Sengupta (37:26): I think the short answer is that there is little evidence to say that harsher punishments work as deterrents to such kinds of crimes, and feminists have been talking about that for a really long time, and even after the amendment particularly came about, a lot of feminist lawyers have actually been talking about how there is absolutely nothing to suggest that harsher punishments lead to higher rates of even conviction. So conviction rates actually come down if you go up the ladder of punishments, and again it obviously increases the threat of violence against the victim or the complainant if they want to come in and register a case against and speak about this case of sexual violence which has happened to them. So I think this is very, very counterproductive in that sense.

Monika (38:31): Yeah, absolutely. I mean, it goes against the principle of punishment, right? As we were just discussing a few questions back. And for this one does not even need a lot of training to understand. It’s common sense that why for certain offenses, certain offenses should attract harsher punishment. So it completely collapses that gradation as you rightly point out in your question.

And even as we discussed, first of all, I don’t think that when somebody is committing such a gruesome act, they think about the gradations of punishment that, you know, if I just end it at rape, I will get this much punishment. So I don’t think people are thinking like that when they are committing such a crime.

And one of the reasons that rape and murder has increased over the years—and it has increased, there have been findings that at least after the 2013 amendment, the instances of rape and murder had increased. And I think one of the reasons it has increased is not so much because of the gradations of punishment, which are important to have. We need to have gradations of punishment. But the reason for escalation of violence, I think, is not so much because of the gradations of punishment, but because the perpetrator in cases wants to remove the prime evidence, and in cases of rape, the prime evidence is the victim’s testimony and her body, right? So the defilement, burning of body are trends that we have seen recently in recent cases. I think that’s driven more by this desire, or whatever you call it, to remove the primary evidence, right?

And having said all of this, I would like to echo Atreyee’s point that in any case, harsher punishments do not lead to deterrence. And in fact, if you spread harsher punishments across categories, that might enhance the stakes of filing a complaint across these categories now and not just the most severe, most heinous kind of crimes. And it would also disincentivize courts from convicting, and there’s already a very abysmal rate of rape conviction in India. It’s less than 30%, and of all the cases that go to rape trials, it’s just about 2%, which is quite dismal, the state of affairs.

Diya Ranjith (40:57): So just to zoom out of the RG Kar rape case in specific and move on to the broader anti-rape response, I wanted to ask you a question. In your opinion, does the legislative focus on post-crime punishment and harsher sentences and death penalty inadvertently shift the focus and resources away from other critical areas of gender justice—for instance, aspects like preventive measures or certainty of conviction and robust victim support systems, and also measures directly involving the officers of the state, for example, police sensitization, especially considering the number of rapes that happen by law enforcement itself?

Monika (41:36): Yeah, I mean the short answer is going to be yes, that it undoubtedly shifts focus. But let’s look at both these aspects. So when it comes to preventive measures, I don’t think that it’s something that we even need to talk about. I have a very cynical view about this—that the state really gains by episodes of sexual violence. So they have absolutely no interest in preventing sexual violence. So let’s just forget about preventive measures.

But even in terms of post-crime procedures that the state could follow, as you rightly mentioned in your question, there’s a disproportionate focus on punishment and not on other procedures that need to be also affected by the state, right? So for instance, investigation—as we were just discussing time and again—has been called the weakest link in the entire prosecution case. Harsher or softer punishments—we are hardly convicting offenders. In certain subclasses of rape, so for instance, in promise to marry cases of rape, which is what my research is about, the conviction rate is further lower. It’s already so low and embarrassing. It’s further lower in certain kinds of rape cases, right, where there’s any kind of semblance of consensual relationship—then forget about getting a conviction if you’ve been violated.

And yes, even in this bill, I think feminist scholars have pointed out that the legal mechanisms to support survivors such as victim protection programs and focus on improving the quality of prosecution and judicial conduct is completely missing from the act. Even in terms of the existing victim support mechanisms and rehabilitation system that we have in place—so for instance, in Delhi, there’s DCW, there’s Women’s Commission in every state. There’s also legal state aid in every state. But the personnel who occupy these positions, they have the same kind of attitude which also afflicts the dominant attitude in the whole of criminal justice system, which is anti-Dalit, anti-Adivasi, anti-lower class, anti-Muslim definitely. And most of them believe—in fact all of them that I have at least spoken to believe—that most of the cases are false, and these are people who are supposed to facilitate victims in seeking justice, right?

So I mean there’s no quick fix, but then social transformation has to happen for any sustained change to take place. But in terms of more short-term focus, it’s also interesting to see that in terms of post-crime focus, the state has not focused so much on helping the victims in navigating the pre-trial and trial stages of pursuing the case, including registration of police complaints, which emerges as one of the biggest challenges for survivors still, and the kind of treatment that they undergo when they’re going for medical examination. And if they refuse medical examination, then that is held against them in the trial, right? So there are a lot of these problems that we need to cope with before we talk about harsher punishments and other kinds of quick-fix measures.

Atreyee Sengupta (44:56): The only thing that I would like to add is that in this particular case, the hospital was also a workplace and an educational institution, right? So institutional accountability is something that it completely omits from these kinds of provisions where everything else other than this particular sentencing becomes irrelevant to the question, whereas addressing institutional accountability also helps us address structural inequalities and structural problems that are there in these workspaces. And those were some of the demands that were made by the doctors, particularly during this movement as well. But again, we see that just like preventive measures or victim support systems, how to help survivors navigate the law in terms of proceeding with their complaints—all those things are completely ignored by the bill. Similarly, institutional accountability is also something that’s completely missing from here, but it’s extremely important to inculcate long-term change in terms of how violence against women takes place within institutional spaces.

Bala Yamini (46:15): So, delving into feminist discourse surrounding punishment for the crime of rape, it is often seen that demand for death penalty in such cases is fueled by the narrative that rape is a fate worse than death. From a feminist and human rights perspective, how do we critically engage with this rhetoric? And does it perhaps even intentionally reinforce the patriarchal norms of honor and purity, rather than centering the survivor’s rights, autonomy, and potential for life after trauma?

Monika (46:46): Yeah, I mean, the long and short answer for this is yes, it does. It does reinforce patriarchal notions of honor and purity. And it is embedded in that discourse that rape is a fate worse than death, right?

Now, how do we critically engage with this rhetoric? First of all, why is it considered a fate worse than death, right? Because it is deemed to cause not just the social death of the victim, but also of the whole community because the victim’s body is assumed to embody the honor of the community and it is considered that that honor has been defiled in some sense.

Now, if you take honor out of the equation, there’s not much reason, at least I see, as to why rape should be any different from other forms of physical violence, right? And this is a provocation that Michelle Foucault had made in a very different context and with a very different motivation, which were not benign at all, but it actually led to some kind of feminist debates in the 1980s about the sexualization of rape. And there’s a debate and there are merits of both the positions. But you know, this entire idea that rape scars you—I find it very baseless. And I think when I’m saying this, I am also reminded of a very prominent feminist public intellectual who once said that, you know, as a woman, by the time you’re 40 years of age, you are in any case inevitably scarred. So there’s no point of fear-mongering by exceptionalizing instances of rape in that sense, because women are scarred through everyday acts of violence in their lives, right?

This fear of rape also is very interesting because I think that more than the actual incidences of rape, the fear of rape is something that controls women’s sexuality and bodies in everyday lives, right? It also reproduces a feminine body. This is something that phenomenological scholars, feminist scholars have pointed out—that it reproduces a feminine body in the sense that it restricts mobility. It fragments a woman’s subjectivity temporally and spatially speaking. So for instance, Iris Marion Young talks about how for us as women, the space is ruptured and it is not continuous because we see near as something which is accessible to us, but the far is something which is inaccessible to us. So the distance does not exist as a continuous space, right? So the way in which we interact with our surrounding, our mobility, our subjectivity are all fragmented and distorted because of the fear of rape. So it is a very potent tool for state and society to not protect, but to control women’s sexuality and thereby protect community’s honor. So this is one way in which we can critically engage.

So you’re right that it is embedded in that discourse of rape being a fate worse than death. And therefore this bill is not just unconstitutional for violating Article 21 by providing for mandatory death sentence, but also deeply anti-feminist.

Atreyee Sengupta (50:03): Yeah, and when you look at the discourse that was built around the case, there also the constant conversations around the victim’s body and how and what the extent of the violence, of the sexual violence, of the physical violence, was constantly used to fuel this agenda for death penalty—that because of this extent of violence is the only reason why it deserves such kind of an outrage, which then makes us think that cases of sexual violence that probably do not exhibit this extent of violence—whatever the extent of violence that they’re talking about—is not worth outraging over, is not worth talking about or acting against.

And this kind of binary, of course, is rooted in this idea of honor. Again, that who is the victim that one is talking about? What also, as Monika rightly pointed out, that how this fear is then used to control our sexuality, controlling our mobility, and this kind of mobility control is again this idea that because these people were at their workplace, which is why outrage over a sexual violence case happening at a workplace is something that’s worth doing for the public and the state, while if somebody was just loitering—as Shilpa Phadke and others talk about that if a woman is just loitering, not really there for a certain reason, not for a certain productive reason that they are occupying a certain space—if something happens to them, the first reaction would be why was she there?

And in fact, even in this particular case, even though it was her workplace, one of the first responses of the principal was to say that why was she there, even though she was a doctor who was on duty. So all of these transgressions of spaces that we are constantly warned about—that if you transgress, then the violence will happen. So once you transgress this particular space, you can’t ask why this violence is happening to you. We already warned you that this would happen to you.

Bala Yamini (52:19): So, focusing back on the RG Kar incident, cases like this show us the limits of carceral or symbolic justice. What do we need to transform the conditions under which sexual violence continues to be silenced or institutionalized or sustained?

Monika (52:38): Yeah. So I mean time and again, the limits of carceral justice have been highlighted by incidents of this sort. So for instance, even despite the carceral expansion that happened through 2013 and 2018 amendments, the NCRB data shows that there’s only been a rise in cases of rape and murder, right? Further, some studies show that the conviction rate in contrast has reduced by about half after the 2013 amendment, which enhanced punishment, which showcases everything that we have been saying about how the conviction and all of that works with respect to harsher or softer punishment, right?

Now, having said all of this, I personally think that the biggest limitation of carcerality, irrespective of the conviction rate and the disincentivizing or incentivizing of rape complaints that it might do, the biggest limitation is the way in which it conceptualizes rape as an individual offense, right, as something which is committed by a deviant, abhorrent beast-like man, and thereby it exonerates society of the collective responsibility in making rape possible and not just rape—in sustaining the economy of everyday violence against women in general, right? So the emphasis on carcerality and symbolisms are all distractions and political stunts to showcase an ostensible commitment to addressing rape. And at the same time, there’s no one way in which we can tackle sexual offenses, right?

But what we definitely know is that tougher laws and harsher punishments are not the way to go ahead. They are not only unhelpful, they are also counterproductive because as we mentioned, it silences the victim. Imagine in a country where more than 90% of rapes happen by somebody that the victims tend to know—so it’s an acquaintance of sorts—so the pressure that the victim might face from the family and the society to withdraw the complaint or to not lodge a formal complaint in the first place would only increase if you make the punishment harsher, right?

Similarly, as I was mentioning before, when we understand criminal justice system in its sociality and in terms of human beings occupying those spaces, you can also understand why police officers who have this prejudice that, oh, you know, the boy did not even do that much, would not be incentivized to file a formal rape complaint. And that happens almost every day in the Delhi police stations for promise to marry cases, because there’s a very entrenched understanding that these cases are false, right? So that tendency will only increase, will only become worse for victims in that sense.

So, I mean, I would only say that in terms of changes, there has to be social transformation, there has to be this entrenched empathy in the criminal justice system and society has to change for anything better to happen.

Also, the parliamentary standing committee in the past has recommended that instead of coming up with more laws, it emphasizes on significance of implementing existing laws and making our institutions equipped enough to deal with such cases and also augmenting accountability and removing other kinds of biases that might exist in criminal justice system. So instead of more laws, harsher punishments, there’s a need to reform the system from within.

And even as we see this, we have to also understand that there’s a limit to even reforming criminal justice system which itself is based in anti-Dalit, anti-Muslim, anti-minority in general sentiments, right? So for instance, if you just look at the kind of statistics that we see in terms of who are the people who are occupying the prisons, there’s a disproportionate representation from marginalized communities, from Dalit, Adivasi, and Muslim communities. So we have to also think of anti-carceral measures in dealing with harms of this sort and make our justice system more victim-centric and focus more on the healing of the victim, instead of retribution.

Atreyee Sengupta (57:09): Yeah. And just to add to that, I absolutely agree with everything Monika said. If you look at the NCRB data in 2021, it said that 66% of the undertrial prisoners are from marginalized castes. And even if you look at all of the highly media-documented trials that have happened, even in those cases you can see that the people who are actually getting convicted are from marginalized castes.

So even when we are talking about how we need to increase harsher sentences so that the conviction rates are there, we need to be very critical of the device of criminal law itself, which is why I feel that we cannot equate justice with criminal law under any circumstances. It can be an intermediate sort of relief that it can give to some people, but in the long run, criminal law only works to consolidate the carceral power of the state, which of course works only through marking certain bodies as criminal and certain bodies as those which can get the chance of being innocent until proven guilty. So it itself is very much marked with that kind of difference and perpetuation of violence. So it’s not very productive for feminists to think about criminal justice as the source of justice against cases of sexual violence.

And feminists have been very critical of the carceral power of the state itself from the very beginning in India at least, even if they have not always taken anti-carceral abolition stances, they have still been very, very critical of how the state and the law inflicts injuries upon bodies of both the accused and the complainant. So those conversations have been happening and we need to carry on those conversations to make sure that we are not falling into the trap of believing that states actually are doing this to ensure gender justice in any way.

And as Monika pointed out, I think we need to have social transformation which can only come through a point of view which does not center the upper caste, even the upper caste feminist views, but has to go through a certain kind of change where the understanding of the criminal justice system takes into account anti-carceral and anti-caste views in mind.

Aastha Nayak (59:35): Thank you for that. I think with that we can conclude today’s podcast. Thank you so much, Miss Monika and Miss Atreyee, for your wisdom and your insights.

Monika (59:48): Thank you so much. It was very nice talking to all of you.

Atreyee Sengupta (59:52): Yeah. Thank you so much. It was really nice to talk to all of you