Daily Times

She died. But did she die in vain? 23
years old and her life nipped in the bud by six monsters. Yes, monsters they were, monsters they are and monsters they will remain. Battling the severe trauma, serious injuries to her body and brain and severe organ failure, she could fight no more. ‘Damini’ as she had been dubbed, breathed her last 18 days after she was brutally raped, assaulted and thrown off a bus, as the six monsters tore to pieces the last vestiges of humanity.

India is in an uproar. One of the monsters was a juvenile, just six months short of being an adult when he actively participated in this heinous offence, which included assault with an iron rod shoved into Damini’s body. He gets three years — for her rape and murder — the maximum sentence possible under India’s half-baked juvenile laws. Tried by the Juvenile Justice Board, he was sent to a Reformatory for three years, where he will be out in just over two years, as eight months of the sentence is considered undergone already. And good luck to India, tasked with rehabilitating a monster, let off with a slap on his wrist.

I can understand the public outrage, but the judges need to work within the confines of the law. How can a penalty that does not exist on the statute book be awarded? The failure lies not with the judges but with the legislature for drafting a toothless law, which probably no one challenged until after this grotesque incident. According to newspaper reports, the Indian Supreme Court dismissed eight petitions that prayed that a juvenile accused who commits rape and murder should be tried and punished under adult laws and the juvenile should be redefined as 16 or under instead of the current 18 years or under. The three-judge bench observed: “There are, of course, exceptions where a child in the age group of 16 to 18 may have developed criminal propensities, which would make it virtually impossible for him or her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking.”

The National Crime Record Bureau (NCRB), part of the Indian Ministry of Home Affairs, provides data pertaining to the incidence and rate of juvenile delinquency under the Indian Penal Code. The data spanning the period 2001-2011 shows a steady increase in crimes committed by juveniles, from 16,509 in 2001 to 25,125 in 2011, an increase that is more rapid than that of other cognizable crimes. Another document shows the data of juveniles in conflict with law under different crime heads from 2002 to 2011. In 2002 there were 485 cases of rape attributed to juveniles, and in 2011 the number had risen to 1,149.

In 2002 the Juvenile Justice System Ordinance was promulgated in Pakistan to provide, among other things, for protection of children involved in criminal litigation and their rehabilitation in society. This law gives the court discretion to refuse bail to a juvenile who is 15 years or above “if there are reasonable grounds to believe” he “is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality”. While a juvenile or a child is defined as a person who at the time of commission of an offence has not attained the age of 18 years, there is no limit on the award of sentence if convicted, except that he cannot be awarded the death penalty or sentenced to rigorous punishment or labour during his confinement in a borstal, a place where child offenders may be detained and given educational and training for their mental, moral and psychological development. In 2005, I was serving as the non-official visitor of all Punjab jails. During this period, I visited both borstals, one located in Faisalabad, the other in Bahawalpur. I was shocked to find that the Faisalabad borstal at the time was confining juveniles in solitary. One of the ‘inmates’ had tried to kill himself and had over 40 blade slashes on his body, and he was still put in solitary, a fine example indeed of the ‘mental, moral and psychological development’! There were numerous complaints by children of abuse — physical, verbal, emotional and sexual. The Bahawalpur borstal was a heartening place to be where they were actually educating and training the children confined there. I have no idea how much these places may have improved under the new government, but I sincerely hope that they have.

After Damini, a recent attack that made the headlines was one on a photo-journalist in Mumbai. According to the statement given by the Mumbai Commissioner, the woman, who was “around 22 years old, had gone inside the Shakti Mills compound at about 6:00 pm along with a young man who was carrying the cameras. Five men who were inside the derelict textile mill first accused the woman’s companion of being wanted for a murder, tied him up with a belt, then took the woman aside and took turns raping her.”

Mumbai was thought to be a safer city than Delhi, which was dubbed the rape capital. So what has gone wrong? One always believed that lone women and girls were more at risk of such atrocities, but both the Delhi and Mumbai victims were accompanied by men. Both were brutalised by not one but five or six rapists. There are allegations and accusations by human rights activists against the police of not protecting women, of restricting their movement, of moral policing. There are calls for having deterrent laws and of tightening the noose.

There is talk of an upcoming Bollywood movie, Kill the Rapist, inspired by the Delhi rape. The film’s producer is reported as saying, “Most people had their eyes opened by last year’s incident. [The film] has a very aggressive title because subtlety in India does nothing. The aim is to put pressure on law enforcers, lawmakers, the media, to get real change.” The film is being publicised as an empowerment symbol, dedicated to women across the world, with the goal of making “every rapist shiver with fear before even thinking of rape.” Reading about this movie brought back memories of earlier Bollywood films that had attempted to deal with the issue, movies like Zakhmi Aurat and Damini. Media is a powerful tool to get a point across, the visual media the best. A picture is said to be worth a thousand words; just imagine what a series of talking pictures, strung together, has the power to evoke. Justice in one’s own hands?

As a society, regardless of east or west, we have deteriorated and are going downhill fast. We battle a low conviction rate in both India and Pakistan, unless the offence somehow makes it to the media. Sexual offences are grossly under-reported. India has better rape laws than Pakistan, but perhaps we have better punishments if convicted. Even the youth offender laws in the UK provide for harsher penalties than India and stricter sentencing guidelines, recognising the concept of dangerous offenders and gravity of a crime. Calls to enhance the three-year sentence handed out to the juvenile accused in the Delhi case to death are useless since there is no law that provides for that. And sadly, maybe the barbaric murder and gang-rape of the 23-year-old Damini was not grave enough to jolt the government into amending the law. Until something more serious, heinous, gruesome, brutal, sensational or shocking to public morality comes along, justice will be in shackles.

The writer is an advocate of the High Court