Petitioning High Court of Punjab and Haryana and 7 others

Petition Against the Suspension of Jail Sentences of convicted rapists Hardik, Karan,Vikas

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On September 13, 2017 the High Court of Punjab and Haryana passed an order suspending the jail sentences of 3 convicts and allowed bail under Section 389 of the Code of Criminal Procedure, 1973.

After the criminal trial, the Sessions Court had convicted the three persons for charges including rape, criminal conspiracy and criminal intimation among others. The three convicts are expelled students of Jindal Global Law School.

This is a petition, on behalf of the students of O.P. Jindal Global University and all other signatories, publically and unequivocally condemning the decision of the High Court.

We believe that the focus of the judgment on the character of the victim is shameful as it veers towards victim blaming. Under no circumstance is rape or sexual harassment excusable. It doesn’t matter if a girl smokes, drinks, or is sexually active – these things are irrelevant when it comes to rape or sexual assault. The only thing relevant is consent.

We demand that the Court understands that a patriarchal mindset, where a woman does not have sexual agency and her husband is the only one entitled to her sexuality, is not acceptable. Sexual experimentation by the girl in her personal life is NOT an acceptable reason for the suspension of the sentences of the convicted rapists, as the Court claims.

This judgement is a perpetuation of rape culture. It worsens concerns with regard to security of women in public spaces. Does the Court mean to signal to our generation that if we drink and smoke, we shouldn’t expect justice from the system, even if it comes to rape and intimation?

Stated in the judgement – “The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world. No wonder, what is thrown up before us is a tragedy of sorts, driving four young lives and equal number of families into an abyss.”

Below are the detailed reasons for our dissatisfaction with the stance taken by the Court -

Misunderstanding of what a Reformative Justice System is

While it is true that any criminal justice system should focus on rehabilitation and reformation, it cannot be at the expense of trivialising the gravity of the offense. On the other hand, the first step towards reformation is acceptance of one’s wrong doing. The Court’s judgement, by laying blame on the victim and treating the convicts and the girl as victims of circumstance, do the exact opposite. The boys are not victims of their circumstance. The boys committed heinous acts, not once, but over a long period of time as stated by the Sessions Court, willingly. They need to first own up to their mistakes before they can be reformed. The Court playing the role of a rape apologist does not make the criminal justice system rehabilitative and reformative.

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In addition to reformation and rehabilitation, there are 5 primary grounds on which the Court believed there was reason to suspend the convicts’ sentences. We believe that each of them are extremely problematic, and do NOT provide a justification for the suspension of the convict’s sentences. The convicts were given sentences of over 3 years for grave offences, and these reasons DO NOT balance the interests of all parties involved.

1.      No violence was involved

Stated in judgment - “The accused are young and there was no gut wrenching violence which normally accompanies such situations.”

Rape and sexual assault DO NOT become excusable if it does not involve extreme violence. The personal space of the victim is violated even if there is no violence. The emotional scars of rape are long lasting, whether or not it is accompanied by physical scars. It is shocking that the Court has taken this line of reasoning.

2.      Family honor and suffering

Stated in judgment - “What is equally worrisome is how to retrieve the youth who have dragged themselves and their families into an abysmal situation, be it the victim or the perpetrators.”

Family honor has been an obstacle in reporting of sexual assault in India for far too long. It is true that public shame is brought upon the family of the perpetrators, but that is NOT a reason enough to suspend their sentences.

The integrity of a woman’s body, her personal space and her agency cannot fade and allowed to become less important in the face of a convict’s family’s social standing. She is an individual, and she matters. The message that needs to be sent out is that the family of the boys should do a better job at raising their sons if they want to avoid public shame.

3.      Character of the Girl

Stated in judgment - “The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism, and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents. ….but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind."

Slut shaming and victim blaming has become too common when it comes to rape and the times we live in demands a severe condemnation of such a trend. What has been signified in the above excerpt from the order blames the victim as if she was asking for it. What has been forgotten is the crippling of her agency of choice and the infringement of her basic human rights. While she was subjected to such inhumane treatment physically, emotionally and psychologically by CONVICTED rapists, such a characterization of her does not behoove a Court of law.

This was NOT a ‘misadventure stemming from promiscuity’, this was rape.

Instances of victim blaming in the judgment include -

“She further admitted that she used to smoke cigarettes of 'Classic' make.”

“She also conceded in her cross-examination that her hostel room was searched leading to recovery of condoms by the Warden, but the parents were not informed in this regard”.

“The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.”

4.      The girl did not disclose her trauma in a timely manner

Stated in the judgment - "A perusal of the statement of the victim as also her cross- examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends."

When a person goes through something as traumatic as a rape, it is never easy to talk about it. Women takes years to build up the courage to talk about instances of sexual abuse because it isn’t easy. In this case, the victim was blackmailed into silence, so punishing her further for not opening up about the abuse, by not punishing the victims, extends her misery. This judgment has undone efforts encouraging women to speak up. The immediacy of revealing her mental state is NOT a relevant factor while considering whether the convicted rapists’ sentence should be suspended.

5.      Educational prospects of the convicted rapists

Stated in the judgment - “It would be a travesty if these young minds are confined to jail for an inordinate long period which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings.”

As students of O.P. Jindal Global University, we know that the victim did not return to college to finish her education. She lost precious years of her education because of the heinous acts of these men. As the student community at O.P. Jindal University we apologise to her for not being able to create a more conducive and supportive environment for her to be able to return.

Given this loss of educational prospects of the girl due to no fault of hers, we find it unacceptable that the Court has given so much weight to the price being paid by the convicted rapists for their actions in terms of loss of educational opportunities. The rapists are not the victims, and we refuse to treat them as such. If the Court wishes for them to have an education, we suggest that the Court recommend education programs in prisons.

For the aforementioned reasons, we strongly condemn the victim-blaming order of the Punjab and Haryana High Court. We wish to emphasise here that it is unfortunate that the Court has taken this recourse when it should be attempting to provide cathartic relief to the victim, rather than blaming her.

You can read the above mentioned judgment here - https://phhc.gov.in/download_file.php?auth=L2RhdGEwMS9hcHAvb3JhY2xlL3Byb2R1Y3QvMTEuMi4wL2RiXzEvYXBhY2hlL3BkZi9mby9DUk1fMjM5NjJfMjAxN18xM18wOV8yMDE3X0ZJTkFMX09SREVSLnBkZg== 

This petition will be delivered to:
  • High Court of Punjab and Haryana
  • Government of India
  • Supreme Court of India
  • Ministry of Women and Child Development
  • Commission of Women: Government of Haryana
  • Government of Haryana
  • National Human Rights Commission
  • People of India

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