In 2012 “Nirbhaya” a young female paramedic was
brutally gang raped in a cold December night in Delhi, India. Within a few days
the police nabbed the offenders and arrested them. All 6 of them were from
northern parts of India who came down to Delhi for making their living. All of
them were working as transport workers including driver, conductor, cleaner
etc. Within a few days of their arrest, the victim died because of the impact
of the assault and internal injuries. The charges against the accused were
enhanced from rape to include murder under the Indian Penal Code. Among the 6 accused
persons, the prime accused committed suicide. Even though the case was taken
over by fast track trial court, it took around 10 months for the trial court to
convict the accused and award death penalty to the surviving 5 accused. The
death penalty was upheld by the Supreme Court of India in 2017. In between one
of the accused pleaded to be considered as minor and was declared as minor and
hence was dealt under the Juvenile justice administration system. However
neither the Supreme Court, nor the high court prevented the accused persons
from exercising their rights to appeal against the capital sentence. The
Supreme Court considered this case as rarest of rare cases. Except the minor,
other convicted accused did not however succeed in their respective pleas to
the Supreme Court to reverse the sentence to life imprisonment and the
President for mercy petition.[1] All four of the adult convicts were hanged in
the wee hours of 20th March, 2020. Immediately after this the Covid
19 lockdown was clamped strictly almost all over the world preventing several
litigants, victims to approach the courts as courts also suffered due to
pandemic.
None of the convicted persons in
NIrbhaya case came from socio-economically forward class. Except one, others
did not complete their basic education as well.[2]
Some researches including the controversial India’s Daughter documentary[3]
claimed that lack of education could have been the main reason to defy the laws
for violating women in this regard. While almost all such researches and
findings were concerned about the perpetrators, not many looked into the fate
of the wives of such sex offenders who may not have received primary education
and may not have been allowed to access justice for themselves because of being
women and living in patriarchal societies. Punita, wife of Akshay Thakur, who
was one of the convicts, tried her level best to convince the courts and the
society at large in her own way that if
her husband was hanged, she and her minor son would have to die. On the final
day of hearing she was seen shouting, crying, beating herself and fainting
before the Supreme Court building. Her actions attracted media and she was
probably encouraged to continue to do what she was doing because that would add
more TRP to the stories that were being made on Nirbhaya sentencing. Soon she
made headlines in almost all domestic and foreign news channels and she was
center of debates for and against death penalty. Simultaneously she was
targeted by internet trolls vigorously.[4]
In the recently held 9th
international victimology conference organized by Jindal institute of
Behavioral Sciences[5]
I had addressed the issue of cyber victimization of Punita through my paper
titled “Critical
analysis of the case of wife of Nirbhaya rape convict: therapeutic
jurisprudence & cyber victimological perspectives”. While the media could successfully (and
probably rightly) generate public sympathy for the rape victim and her family,
they generated extreme hatred to Punita because she was apparently ‘supporting
her husband’. The internet platforms added fuel to the fire in this hate
campaign. If one sees the news reports on Punita Devi on the social media
handles of the news media channels, one would get to see that the comments
posted about her and opinion generated on her created extremely negative
profile of hers which would go a long way to prevent her from getting any job
in any private or public sector. It was a visual victimization of Punita on
cyber space which still exists on cyber space and will be existing forever. In
my earlier research on visual victimization of women on cyber space, I had
observed that the victims of such visual victimizations may now know about
their online victimization because they may never get access to the internet
and digital communication media as their urban counterparts may get, which may
eventually help the later to reach the criminal justice machinery to remove
these contents.[6]
Women such as Punita are often seen as
‘co-accused’ by the public at large. Coming from socio-economically backward
communities and being educationally challenged, most wives of sex offenders in
several Asian countries (where patriarchy rules), may not be allowed to access
justice for themselves. Apparently she approached the family court in her
native district for divorce because the Hindu Marriage Act under S.13B(2ii)
allows women to get ‘quick’ divorce under special grounds which includes
conviction of husband for rape, sodomy, bestiality etc.[7]
But she was too late in approaching the court. She did not want to live as a
widow of a hanged rapist. She preferred to be a divorcee. Women in such
situations are blamed by the families and public at large for failing to
satisfy their husbands sexually and materialistically which may have encouraged
the later to go ahead for raping and sexually assaulting other women. These
women cannot go ahead for divorce while the trial is on because this would not
only attract social taboo, it will also push such women to extreme poverty:
they have to leave the matrimonial homes, they may not be accepted in their
parental homes and they may not get any financial support from anyone.
How can
Therapeutic Jurisprudence help? Justice Krishna Iyer a legendary judge who introduced new paradigm
to reformative justice in India mentioned about applying Therapeutic
jurisprudence in the prisons for reforming the prisoners in 1970’s.[8]
But after him we did not get to see the
use of the term by the judges while dealing with reformative criminal
jurisprudence in India. In numbers of my researches however I have shown that
the concept of Therapeutic Jurisprudence has submissively influenced the Indian
judges.[9]
The spirit of Therapeutic Jurisprudence may help wives of sex offenders
especially in countries like India. In my earlier research titled “Free Legal Aid for women and
Therapeutic Jurisprudence: A critical examination of the Indian model”,[10]
which was published In the edited book
volume titled Methodology And Practice Of Therapeutic Jurisprudence Research edited
by Stobbs Nigel, Bartel Lorana & Vols.M , I had observed that women
especially from socioeconomically backward communities may not be permitted to
access justice even if the legal counseling
is freely available through free legal aid clinics. This situation may
be improved by vigorous campaigning by legal aid volunteers and law students.
The law students, practitioners and judges must be sensitized about Therapeutic
jurisprudence and law’s therapeutic effects which may bring tremendous change
in women empowerment. Wives of sex offenders go through tremendous
traumatization primarily because they feel cheated in their marriages and then
feel threatened when it comes to social security for them. As such, mental
wellbeing of these women are least taken care of when the court decides to charge
the husbands, i.e. the accused in sex offences. In my presentation in the
international victimology conference mentioned above, I have proposed that
courts must consider to parallelly counsel such wives through free legal aid
cells so that they may be made aware about their rights for divorce,
matrimonial alimony, child custody and maintenance for child.
Further, I have also proposed that
courts must suomotu consider to pass restraining order for the media houses
regarding airing the images of grieving wives, who may or may not be
accompanied by their children. These women do not make any ‘drama’ to stall the
execution of sentences for supporting their husbands. They express their anger,
frustration and fear for their own future which is dependent on the longevity
of their husbands. Unfortunately their expression of fear, frustration etc are
hugely consumed sadistically by the society at large and due to the non-ending
presence of the clippings on the internet, such women may be profiled in a
negative way. I have proposed that the scope of Right to be forgotten must be
expanded in such cases which the courts must take up extending the power of
judicial intervention for ensuring the privacy rights of women. Interestingly
many courts across the globe are shifting burden to the website companies for
not removing objectionable contents especially when it comes privacy of women
and children. India has laws for website liabilities in this regard under S.79
of the Information Technology Act, 2000(amended in 2008). This provision read
with Information Technology (reasonable security practices and procedures and
sensitive personal data or information ) Rules 2011 mandates that web companies
shall be held liable if they do not take down objectionable contents within due
time. This brings two major points to be considered: who reports it? Whether
this can be considered as ‘protected speech and expression’. Indian judicial
understanding regarding freedom of speech on internet is expanding and courts
have started using judicial discretion to not to consider each and every speech
as speech falling outside the purview of Article 19(1)(A) of the Indian
constitution which guarantees freedom of speech and expression as a fundamental
right. It is obvious that women such as Punita would not know about such legal
jurisprudence. The courts therefore must consider adding this issue in the bag
of ‘reformative and rehabilitative considerations’ when awarding the sentences
(including life sentence or capital sentences). This may go a long way to prevent secondary
victimization of the wives of sex offenders who are ‘innocent victims’ of the
entire situation.
It is therefore hoped that if the
issue of online as well as real life victimization of the wives of the
convicted sex offenders are seen from the Therapeutic Jurisprudential aspects,
the rights of women to access justice, rehabilitation and privacy may be
secured.
Prof(Dr) Debarati Halder, LL.B, LL.M,
Ph.D(Law)(NLSIU) is a Professor at Unitedoworld School of Law, Karnavati
University, Gujarat, India. She is the founder of Centre for Cyber Victim
Counselling (www.cybervictims.org)
and the India chapter head of International Society of Therapeutic
Jurisprudence. She is the pioneer in introducing Therapeutic Jurisprudence as a
part of credit course in legal education in India. She can be reached
@debaratihalder@gmail.com
[1]
See for more in PTI(2020) Nirbhaya
case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against
rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020
[2] For
more, see in Profiles: Who were the Delhi gang rape convicts?. Published in
https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus.
On March 20. 2020, accessed on 21.03.2020
[3] For more, see in Banned film India's
Daughter shown in rapists' slum
.
Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015,
accessed on 21.03.2020
[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020
[5] The conference proceedings and my
presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA
[6] Halder
D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal
Women: An Analysis of the Human Safari
YouTube Videos (2012) and its Effects. British Journal of Criminology,
54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.
[7] Section 13(2)(ii) in The Hindu
Marriage Act, 1955 states
“A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on the ground………. that the
husband has, since the solemnisation of the marriage, been guilty of rape,
sodomy or bestiality”
[8] See for more in Md Ghiasuddin vs
State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/
doc/1850315/,
[9] See Halder, Debarati, Why Law Fails
to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis
of Indian Legal Education From the Therapeutic Jurisprudence Perspective
(October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427,
(2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175
[10] Halder,
D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical
examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M
(eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA:
Carolina Academy Press.
Please do not violate the copyright of this blog. Please cite it as “Halder Debarati. (2020), Plight of "Punita" : A common tale of 'powerless' women victims of trolling" November, 8, 2020,
published in http://debaraticyberspace.blogspot.com
[1]
See for more in PTI(2020) Nirbhaya
case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against
rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020
[2] For
more, see in Profiles: Who were the Delhi gang rape convicts?. Published in
https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus.
On March 20. 2020, accessed on 21.03.2020
[3] For more, see in Banned film India's
Daughter shown in rapists' slum
.
Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015,
accessed on 21.03.2020
[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020
[5] The conference proceedings and my
presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA
[6] Halder
D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal
Women: An Analysis of the Human Safari
YouTube Videos (2012) and its Effects. British Journal of Criminology,
54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.
[7] Section 13(2)(ii) in The Hindu
Marriage Act, 1955 states
“A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on the ground………. that the
husband has, since the solemnisation of the marriage, been guilty of rape,
sodomy or bestiality”
[8] See for more in Md Ghiasuddin vs
State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/
doc/1850315/,
[9] See Halder, Debarati, Why Law Fails
to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis
of Indian Legal Education From the Therapeutic Jurisprudence Perspective
(October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427,
(2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175
[10] Halder,
D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical
examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M
(eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA:
Carolina Academy Press.
