JUSTICE FOR RAPE VICTIM: REFORMATIVE OR RETRIBUTIVE JUSTICE?

By- Aaditya Sinha

When a woman is raped, hold on for a minute. How can I write a sentence like this without being petrified? How can anyone understand what a person feels when they feel helpless and are unable to move?

I can assure you that no one and literally no one can understand that feeling which the victim suffers at that moment. However, the feeling which we cannot even think, somebody has to go through it and someone is responsible for that.

Now, I want to ask you a question. Consider if there is a law that if a wife has died, his husband has to die with his wife on her pyre. This sounds so unreasonable, isn’t it?  I mean what is the fault of the man in this situation.

However, you are very well informed that this was the practice that was applicable in our country until the 18th century. The gender was reversed and everything was the same. Now, why I am talking about this practice is because I want to understand how on earth this practice was even practiced.

This practice was legal until and unless a man named as “Raja Ram Mohan Roy” questioned this practice and at that point of time when I assume most of the people were against him, he made a very reasonable point, and now finally the practice of Sati is considered to be very rare.

The whole issue is of “normalization”: 200 years ago, a practice was commonly practiced and now nobody can even think about it (At least the majority of people). So, can this happen to rape too?! I have written a sentence like “when women are raped” but can there be a situation where I will not even think to write that.

A time when rape would be probably that offense which one can never think to commit. I know “I am asking for too much”, and it is the most unfortunate thing because even the basic rights seemed to be “too much”.

Recent Rape Cases Covered By Media and Justice for the Victim

In 2012, when the Nirbhaya gang-raped happened in 2012 (in the NCT of Delhi), the whole India was on the streets, the youths were protesting, the government was being questioned of course by the opposition.

The media was trying to show the minute details of the horrifying nights. Writers, Poets were writing stories and poetry to support the victim and show how a woman is not weak but she is stronger. Most of the people believed that rapist should be hanged; there were also many people who believed that rapists should be hanged in the public so that every people have fear before doing this.

Many years passed away, many governments changed across the states in India. After the 2012 Delhi Gang Rape, many more rapes and gang rapes happened in India, but again one such case which made big news was the Hyderabad Gang Rape case in 2019.

This time since people had the access to social media more than what they had in 2012, the protest was very huge. People were constantly saying “Hang the rapists”. This time I think God answered every one and all those Rapists were killed in the police encounter.

This encounter was debated, some believed this was the correct way to punish rapists and justice has been done while many people believed that this is not a way to give justice. The person who was opposing it was apparently speaking more reasonable things.

We cannot have a system where we kill anyone at any point. These things look good in movies, but in reality, things can be different. What if actually, they were not rapists and the one who actually raped that girl was walking freely.

I am not alleging anything to anyone, I am just saying what can happen and what cannot. However, the public was happy that the girl got justice. This time, some months passed, some government changed (with or without the election that is the question) and again many rape and gang rape have happened.

But in 2020, September, a very brutal gang-rape case again got media attention in Hathras, Uttar Pradesh where a girl was brutally raped by some men. Again, for the last three to four days there are many people asking for “Hang the rapist”, they apparently seek justice, but now I am frustrated and also confused, if the Hyderabad victim got justice then why did Hathras happen?

Even if the victim of Hathras gets the justice, is there any guarantee that there would be no Delhi, Hyderabad, Hathras again? I don’t know and that is the reason why I wanted to ask a bottom-line question to myself, what is JUSTICE?

The Actual Meaning of Justice

Justice can be broadly classified into 4 types:

  1. Reformative,
  2. Retributive,
  3. Distributive, and
  4. Procedural.

Distributive justice is mainly for giving the remedy and compensation to the aggrieved party whereas Procedural justice is a type of justice where one has to follow all the procedures and it is subjected that there would be a free and fair trial given to everyone.

However, in the criminal justice system, the two types of justice are reformative justice and retributive justice. In reformative justice, the main objective is to actually bring a change, like in this case the proper justice would be given to all the rape victims would be that after their incident no other incident is reported like that.

In simple words, if there would be no further rape cases, then it would be an actual justice to all the rape victims. Reformative justice, on the other hand, is based on the “REVENGE” formula. It means if someone has committed a crime or an offense then in order to punish him or her you have to do the same offense with that person.

However, there would be no offense when it would be done against the offender. In simple words, this is a justice that everyone wants; this is a justice that both SINGHAM and SIMBA gave in their films.

I know many of you also want an instant justice or say in more technical terms Retributive Justice, but please think that when you make the law, you don’t want to make it for some people or for some specific limited time.

In a country like India, suppose, if there would be a justice system like this, what would happen? There would be many cases, where people will misuse the law, and the bridge between the genders, caste, and religion will become wider than what it is today and we all know that today in a time of social media, people have already become so objective and they don’t really want to understand each other’s perspective.

We need a justice system where we can actually reform the change. I know whenever we hear a rape case like Hathras, Delhi, or Hyderabad we all become so furious that all we want is to hear the news that they should be killed or get some harsh punishments which are fine but I don’t understand one thing.

I may be wrong but even if we kill the person who has done that, how can it give me satisfaction because the person who I cared and loved is no more. Through this blog, my only agenda is to understand the difference between revenge and justice and according to me the only justice which all rape survivors and rape victims can get is that there would be no such cases in the near future.

So according to me, all the Rape convicted people should be arrested and the punishment can be anything: 10 years, 20 years or whatever amendment the Government wants to do. My only point is that during their rigorous punishment they should also be consulted by a Psychologist who will try their best to understand their mental state, in order to understand why do they even try to commit such a heinous offense.

However, as I said in a vast and diverse country like India we cannot follow any absolute system. So, I am not saying that there would be no capital punishment, maybe what we can do is that once the rape accused becomes convicted then after consulting a psychologist they can be given proper counseling and if the psychologist feels that there are very less chances that the mentality of this convicted will be better, then, we can actually give him Death sentence.

In other words, I am saying that after assessing both the crime done by the convicted person and his mental state we can make a decision that what type of punishment should he be getting. There can be many flaws in what I suggested, but we have to make a structure, where we can actually change the environment.

Just watch the news, how many more cases like Hathras, Delhi, and Hyderabad are we going to listen? After every case, for some days we all shout to hang the rapist a then we stop. After some more years or months such thing happens again (This is only regarding those cases, which are covered by media).

There are many cases, which are not even registered. It’s high time that we have to improve our structure and actually get justice for the rape victims and survivors.

Conclusion: To Stop the “Normalization of Rape”

I started saying that the whole thing is about normalization, now; we know Sati Pratha is not normal. We don’t even want to think like that, then, why is still rape normal? For example, when we throw food, we are reminded that there are many people who don’t even get the food which we throw.

For us, it is normal to throw foods, but there are many people who still want to eat that food. We have normalized rape because rape is considered to be the biggest offense against women. But ideally, rape should be that offense which should be considered extinct.

If we understand the law of morality then any offense should be extinct and everyone should understand Morality and ethics, but I know that this is probably the most unrealistic dream at this moment, so what I want that we should focus more on the offenses which are considered to be “small offenses” because nobody talks about them like Stalking (354D IPC), Voyeurism (354C IPC), and sexual harassment (354A IPC).

Those people who say that laws are not strict against women should look at section 354A(1)(iv) that even making sexually colored remarks against a woman is an offense that has a sanction of one-year imprisonment or fine or both.

The laws are already somewhat strict, but the problem is with the system which doesn’t support the women against these offenses, and this has led to a situation where these crimes should be considered as a “heinous offense” and rape should have been an offense which would have been extinct. However, all these things which I mentioned are only a wish, but the reality is very horrifying, gloomy, and dark.


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