Malak Sheth
Introduction
India’s historical landscape is indisputably shaped by the ubiquity of conflict as a defining feature, with the very inception of the modern state-nation marked by the turmoil wrought by the partition. Similar to its chequered past, the decades post-independence have also been shaped by a complex set of conflicts at the national and sub-national levels. The complexity often emanates from the nature of its social fabric which is interwoven with the threads of diverse tribes, castes and ethnic groups leading to inevitable tensions and conflicts among various groups vying for power, resources, and influence. However, muffled in these conflicts is the voice of women who are often at the receiving end of violence in the struggle for power.
In times of conflict, violence, both physical and sexual, against women and girls is the most pervasive form of symbolically humiliating and dominating members of the enemy camp and therefore often seen as a ‘weapon of war’. This is because women are viewed as the nation’s bearers, that is, as the ones who sustain the pride, bear the burdens, and support the country. Thus, violence against women is often used as a part of war campaigns in almost all conflicts with the goal of breaking the enemy’s spirit by perpetrating violence against their repositories of pride.
The conflict arising from the ethnic clash between the majority Meitei and the minority Kuki communities in the northeastern state of Manipur in India is only the latest battleground to test the efficacy of the current penal code to denigrate these patriarchal notions. However, the shocking video depicting two women from the Kuki community being paraded naked (‘Manipur Incident’) by a mob belonging to the Meitei community has ascertained that the Penal Code of India (‘IPC’) has failed in both, creating deterrence as well as in its symbolic value to ‘communicate’ stigma and justice to the society at large.
This is argued because the Central Bureau of Investigation, only after the initial nudge from the Hon’ble Supreme Court, registered a case of abduction, gang rape, murder and outraging the modesty of women against the perpetrators in the Manipur Incident. However, the sense of injustice is axiomatic in the charges as they fail to capture the elements of this heinous crime in toto. Apart from the lack of penal provision dealing with the act of parading the women naked, the elements of rape in the IPC convey a wrongful act which was ‘sexual’ in nature or a consequence of the lustful thoughts of the accused. Per contra, in conflict, sexual violence including rape is used as an ‘integral tool’ for achieving military and political objectives by sending out a message to the victim’s community of their value as opposed to the elevated status of the community of the perpetrators.
Therefore, the article deals with the (a) need for incorporating a self-contained code addressing gender-based violence in times of conflict in India and justifies the same by highlighting the lacunae in IPC through Douglas Husak’s ‘theory of criminalization’; (b) recommends the incorporation of legislation that symbolizes the incorporation of the labelling theory ( as explained later in this article) and sends out the right moral message to the public as well as the parties involved in the conflict, by specifically enumerating the kinds and respective degree of gender-based violence in conflicts and the procedural safeguards for addressing the same.
Gender-Based Violence: India’s Experience in Engineering Stigma
In order to understand the magnitude of the enterprise that is undertaken in this article, it is important to briefly provide a prelude to India’s experience with conflicts post-independence which span across the length and breadth of the country from Kashmir Militancy in the north, anti-Sikh riots of 1984, Gujrat Hindu-Muslim riots of 2002, ethnic clash in Assam in 2012 to name a few. Despite this ubiquity of conflicts, usually along religious or communal lines, India still does not have specialized legislation directly addressing the inhumanity that usually accompanies such conflicts. India is not even a signatory to the Rome Statute of 2002 where its international obligations would have entailed complementing, by improving the resilience of its criminal justice system, the International Criminal Court’s (‘ICC’) jurisdiction over crimes such as (a) Genocide, (b) War Crimes, (c) Crimes against Humanity. Thus, it becomes even more imperative to question the adequacy of the IPC and the lack of specialized legislation dealing with gender-based crimes in conflict when the oversight of the ICC does not apply to India.
Although the IPC contains a provision dealing with enhanced punishment for rape committed during communal or sectarian violence as an aggravating factor under Section 375(g), however, rape is but one form of gender-based violence prevalent during conflicts. However, these crimes such as parading women naked, are still dealt with by the provisions of the IPC such as outraging the modesty of women under Section 354; sexual harassment under Section 354-A; or assault or use of criminal force to woman with the intention to disrobe under Section 354-B.
Such non-recognition of differential mens rea for offences committed in conflicts vis-à-vis in peacetime is tantamount to the equation of acts done out of sexual or prurient interest with a more pernicious yet non-sexual intent of objectifying women’s bodies for permissible use as battlegrounds in times of conflicts such as war or communal tensions. The mens rea in times of conflict goes beyond the standards of outraging the modesty of women in times of peace since this standard is devoid of the symbolism of the assertion of dominance and control by the gross objectification of women from the enemy community. Thus, it becomes important this aggravated mens rea is adequately punished to comply with the doctrine of ‘fair labelling’ according to which it is unjust to not legally label an act as per its specific enormity. An appropriate example of the sense of injustice evoked by unfair labelling would be to equate ‘genocide’ with ‘mass murders’.
Similarly, the only logical conclusion would be to have a specialized code dealing with gender-based crimes in times of conflict as opposed to the peacetime crimes of rape, abduction and outraging the modesty of women, contained within the IPC. This would enable encapsulating and subsequently addressing by punishing the intention of objectification of women and using them as instruments to be terrorized to gain psychological and tactical advantages in the conflict.
Further, apart from drawing force from the doctrine of ‘fair labelling’, such a specialized code also helps comply with Douglas Husak’s twin conditions of (a) harsh treatment and (b) stigma for a punishment to be classified as punitive. The same is elaborated in the following sections.
- Douglas Husak’s theory of ‘Overcriminalization’
The author, throughout this article, has argued that criminal law must be adept in proscribing the objectification of women in times of conflict. It must clearly and specifically prohibit the use of women’s bodies to achieve political ends which is far more heinous and thus not covered by the general offences in the IPC as the intent involved is different. However, the reason for arguing the same is because among the functionalities of criminal law is also its expressive function wherein the “statement” of the law should be intended to influence social norms and, in that way, ultimately affect both judgments and behaviour.
This position is influenced by the sociological theory that people are law-abiding because of the internalization of social norms and not because of legal consequences. Further, Douglas’ theory of criminalization propounds that state punishment involves two essential features: hard treatment and censure and that state response to a conduct does not qualify as punitive unless it aims to censure and stigmatize. Therefore, punishment for gender-based crimes in conflicts under the IPC needs to be tested on the anvil of this twin test of (a) harsh treatment and (b) stigma, for it to have a deterrent effect in the minds of the people.
The punishment under IPC for gender-based crimes in times of conflict fails for the very fact that it fails to create a stigma around the crime by punishing the wrongdoers. This is because gender-based violence, both physical and sexual, is used as a legitimate weapon of war for dehumanization through the “diminishment” of women and through them, the community to which they belong. The very condition of being nestled in a ‘state of conflict’ disassociates the stigma attached to gender-based crimes in peacetime and it attains the status of the most powerful tool to hurt the opposing faction.
The aforementioned position is vindicated by the treatment received by the rapist of Bilkis Bano , a pregnant Muslim woman who was gang-raped by 11 men belonging to the Hindu community during the 2002 Gujrat riots, who after being granted remission by the State were given a heroes’ welcome as they left the jail with people garlanding them and greeting them with sweets to show respect. This shows that because of the absence of necessary stigma around the crime ‘in times of need during the conflict’, any punishment under the IPC given to the wrongdoers is necessarily seen as an act of ‘martyrdom’ and fails to create the necessary deterrence by sending out the correct message to the society. Therefore, the only logical end to solve such a dilemma is to engineer social norms in a manner that gender-based crimes in times of conflict are seen as equally reprehensible tools of violence.
Conclusion and Suggestions: Engineering Stigma through Symbolic Expressionism
The problem with generating stigma around crimes where disapprobation is usually not invited from the immediate society/community of the wrongdoer is not novel for India as it faced a similar dilemma while dealing with offences committed by the so-called ‘upper caste’ against the Scheduled Caste and Scheduled Tribes (‘SC and ST Community’). The unique problem that was presented was that the social norms prevalent in the ‘upper caste’ community did not look at with disdain the atrocities committed against members belonging to the SC and ST communities. Therefore, any legal consequences for such atrocities did not prove to be a strong enough deterrent to prevent people from committing such heinous crimes since their immediate ‘society’ consisting of Upper caste families did not stigmatize such crimes.
Therefore, the Parliament of India in exercising its prudent foresight decided to make a ‘statement’ aimed at influencing and changing the then-extant social norms by enacting exhaustive legislation in the form of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) which specifically enumerates the kind of proscribed acts committed against the SC and ST community.
In dealing with the present dilemma of insufficient stigma around punishment for gender-based crimes in times of conflict, a similar exhaustive legislation which enumerates the specific gender-based crimes that are commonplace in times of conflict and attaching criminal sanctions to all of them, can be enacted. The author proposes a similar structure as adopted by Section 3 of the SC/ST Act which is the ultimate personification of the expressive/symbolic function of criminal law. This section enumerates the common atrocities committed against Scheduled Castes and the Scheduled Tribes like dumping excreta, forcible tonsuring of head, removing moustaches and so on and criminalizes all such acts. In fact, the language used by Section 3(d) which states that “parades naked or semi-naked a member of a Scheduled Caste or a Scheduled Tribe” can wholly be adopted while framing specific gender-based offences in IPC. This section is significant because of its applicability to the factual circumstances of the present case where Kuki women were paraded naked. This is in stark contrast with the generality of offences mentioned in the IPC such as Section 354 which very broadly condemns all acts that outrage the modesty of women. Such specificity aids the criminal law in making a statement as to what specific acts the society considers to be deplorable and to be avoided at all costs even in the complete disruption of legal order as is usually the case in times of conflict.
Although a draft bill to tackle communal violence, the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 ( “draft Bill”), was introduced in the Parliament and subsequently withdrawn. This was because of the stiff opposition to its exclusion of ‘majorities’ from groups that are capable of being at the receiving end of targeted violence. Still, the gender-neutral provisions employed to define a person capable of committing or being a victim of sexual violence were a step in the right direction. Further, the illustrative list of acts in Section 7 that are condemned as a form of reprehensible violence in all communal strives, can also be lauded for its communicative action of sending the right moral message to the society. It would bode well for the country if the parliament discusses and enacts a similar Act, after addressing the criticisms against the draft Bill, to deal with communal violence and/or gender-based crimes during conflicts in India.
For this purpose, the approach adopted in framing the Rome Statute of the International Criminal Court 1998 can also be alluded to wherein broad/vague definitions for crimes against humanity and war crimes gave way to the specific enumeration of crimes that are committed in armed conflicts. The successes of International Criminal Law in shaping the battlefield in preventing atrocities by advancing the rule of law must be borrowed by incorporating its principles and expressive functionality into the domestic legal system. This would act as a gentle civiliser of modern forms of violence by clearly prescribing what is acceptable and unacceptable in situations of armed conflict.
Although such symbolic expressionism cannot address the overarching issue of necessary stigmatization delineated hereinabove, this could still be the first step in the right direction. It shall be substituted with measures such as mandatory psychological intervention, victim compensation, institutional help and so on. Such measures can only be incorporated into the criminal justice system of India if a self-contained code dealing with gender-based crimes in Conflicts is enacted with not only context-based substantive provisions but also procedural ones.
In a manner reminiscent of the Mathura gangrape case which prompted the Criminal Law Amendment of 1983, the Nirbhaya rape case leading to the Criminal Law Amendment of 2013, and the Unnao and Kathua Rape case that spurred the Criminal Law Amendment of 2018, the Manipur Case and the subsequent widespread criticism offer a compelling opportunity to enact legislation addressing gender-based crimes during times of conflict in India. This would provide a focused framework for condemning and preventing such acts effectively. India’s failure to establish legislative frameworks for gender-based crimes, especially violence against women during conflict, has resulted in gross injustice. The reliance on lex generalis or the general law, as seen in the Manipur Case, often fails to capture the full intent and gravity of the crime. Therefore, the government must introduce a distinct category of crimes that carry ‘unparalleled moral and political power,’ enabling law enforcement agencies and courts to prosecute perpetrators with the severity warranted by such heinous acts. This new legal framework would address the inadequacies of existing laws and ensure justice for victims of gender-based violence in conflict situations.
Malak Sheth is a third-year law student at Rajiv Gandhi National University of Law, Punjab. The author would like to thank the editors for their comments.
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