Opinion Pratiksha Baxi writes: After Manipur, disturbing questions before Supreme Court

Mass sexual atrocity is not a public secret that everyone knows about and agrees not to talk about. It is flaunted and video-trophies are circulated. These atrocities which are filmed are re-enacted with each upload and forward. Stripping and parading put the victims on display as degraded objects, where the victim is stripped literally and symbolically of all that is social. This is a form of bareness that inverses the modes by which a person becomes social. This spectacle of violence degrades and puts on display a stripped body, in full view of a complicit and voyeuristic spectatorship. It serves a pedagogical function of power — one that “teaches a lesson” to subjugated and despised women and communities and communicates a message to all women.

The Supreme Court confronts deeply disturbing questions about impunity for sexual crimes. Complaints of sexual violence and murder lodged in police stations and with other authorities of the state were not acted on. The Chief Minister of Manipur reportedly said that hundreds of such cases have taken place. “Hence, we had invoked a ban on the internet in our state,” he said.

A few arrests followed after the Supreme Court asked the Union and state governments to apprise it of what they have done to “hold perpetrators accountable” and “ensure that such incidents are not repeated”. The Supreme Court order also gives directions to the Union and state governments to “take immediate steps — remedial, rehabilitative and preventive”.

How will a constitutional method of investigating and assigning accountability be adopted? As in all mass violence cases, the pattern of partisan and complicit policing will need forensic documentation. How will safe conditions for testimony be created, and evidence conserved? How will survivors of mass violence get remedial and rehabilitative help without further violence? How will the court protect victims from pressure and intimidation? (The Supreme Court of India in Ramesh & Ors v State of Haryana identified the culture of compromise as terror). Will the constitutional gaze of the Court pierce the status reports of the government to ensure remedial, rehabilitative and preventive steps? Will the status report be held to the standards of international and national law? Will questions be raised about command responsibility and constitutional torts that place vicarious liability on the state?

The Justice Verma Committee recommended the addition of section 376F (of the Indian Penal Code) defining breach of command responsibility resulting in sexual violence. This committee recommended that the failure of public servants in command, control or supervision of the police or armed forces, to exercise control over persons under their command, control, or supervision be named as a penal offence, or when such public servants failed to take necessary and reasonable measures to prevent or repress the commission of sexual violence. The Verma Committee was clear that when public servants fail to perform their duty, the burden must not lie on victims of mass violence to furnish proof for such impunity.

Further, how might “reasonable” judicial caution be exercised such that the law is correctly applied by the police, and the pitfalls of omnibus FIRs that routinely follow mass violence cases avoided? After all, Sucharita Santra v State of West Bengal, 2023 notes that the Howrah fast track court had wrongly held that “penetration of finger into the vagina would constitute only an offence of attempt to rape”. Calling this, “an abuse of process of the court/law”, the case of the 40-year-old survivor filed in 2015 was sent back for framing the charges as rape.

The distinction between rape as crime and rape as atrocity is defined in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989. Mass sexual atrocity that targets women and children belonging to Scheduled Tribes is an aggravated offence. And any authority that forges or destroys evidence or refuses to act is liable for criminal prosecution under the law that aims to protect the Scheduled Tribes from atrocities. Further, the 2013 amendment to the rape law under section 376(2)(g) of the IPC names “rape during communal or sectarian violence” as an aggravated offence.

What might the Supreme Court ruling in Patan Jamal Vali v State of Andhra Pradesh mean to the victims of sexual violence in Manipur? Relying on the Verma Committee and feminist constitutional scholars, the court has recognised that sexual assault of marginalised women must be seen as “a result of the interlocking of different relationships of power”. And that one cannot merely “add on” caste, class, religion, disability, or sexual orientation to women’s oppression. Rather, an intersectional understanding locates the experience of sexual violence in a “matrix of domination” and in this case, structures of impunity.

Noting what kind of questions the Supreme Court of India asks is nothing but a performance of fundamental duties under Part IV-A of the Constitution of India. Will the suffering of the survivors be at the heart of judicial decision making? Or will these body blows to feminist constitutionalism remain an academic matter for jurists?

The writer is Associate Professor, Centre for the Study of Law and Governance, JNU