Interview: Why Harsher Criminal Laws Won't Make Sexual Violence Go Away

In conversation with Prabha Kotiswaran, professor of law and social justice at King's College London.

Note: This interview was first published on November 21, 2019 and is being republished on December 3, 2019 after calls for the death penalty for those accused of the Telangana vet’s rape and murder have gained ground, including within parliament.

New Delhi: Professor Prabha Kotiswaran, who teaches law and social justice at King’s College London, has been arguing through her work that more stringent criminal law – which focuses on intensified punishments – should not be the only focus of those who want to tackle complex social issues such as human trafficking and sexual violence.

Kotiswaran is the author of Dangerous Sex, Invisible Labor: Sex Work and the Law in India and the co-author of Governance Feminism: An Introduction.

While in Delhi for a range of events, including a public lecture organised by Project 39A on criminal law and sexual violence in India on Friday evening, Kotiswaran spoke to The Wire about why criminal law shouldn’t be the only solution, what she thinks the alternatives are, the #MeToo movement, and more.

One of the events you’re in Delhi for is a public lecture on ‘The Carceral Politics of Sexual Violence’. What is your opinion on laws around sexual violence in India – including recent changes that have increased punishments and introduced the death penalty – and how cases are dealt with here?

You will need to attend the lecture for this! In short, five years after Jyoti Pandey’s rape and murder, we find an intensification of a carceral approach to sexual violence when we have barely come to grips with how the Criminal Law (Amendment) Act of 2013 has been implemented.

Cynically catering to a politics of perception or being seen to be doing something about sexual violence, these laws threaten to unleash a range of intended and unintended consequences that, in my view, will sadly only undermine the efforts to address the sexual violence perpetrated against women, girls and boys.

A study from earlier this found that SCs and STs and overrepresented in Indian prisons – one in every three undertrials was either SC or ST. In addition, three-quarters of death row prisoners in India are from lower castes or religious minorities, another study found.

Does your disagreement with rigid carceral politics – like several prison abolitionists – also come from the fact that social inequalities may be reflected in the way criminal law is implemented?

Yes absolutely, this is always the danger of overcriminalisation. We need to be prepared for the fact that while seemingly progressive criminal laws meant to sound tough on sexual violence may in fact punish a few violent offenders, they could also be invoked against both offenders and non-offenders from weak socio-economic backgrounds who do not have the wherewithal to engage a competent lawyer to ensure that they have a fair trial. We can learn from other countries like the US, with its mass incarceration of African-American men.

Prabha Kotiswaran. Photo: Twitter/Prabha Kotiswaran

You have written in the past about human trafficking, and why the raid-rescue-rehabilitation model that India has been focusing on may not be the answer. Could you explain why that is?

I think we all know the condition of children’s shelter homes, observation homes, special homes and specialised adoption agencies set up under the Juvenile Justice Act, 2015 – the horrors of the Muzaffarpur homes were on plain display last year.

The condition is no better in the so-called protection homes set up under the Immoral Traffic Prevention Act, 1986, wherein even adult sex workers who voluntarily (under pressure of their economic circumstances) take to sex work are sent to protection homes against their will and kept languishing there for extended periods of time. Skills training is non-existent or economically meaningless. Many have been sexually abused; some escape and some even die by suicide.

The same model is sought to be extended to all sectors of work, to cover those trafficked for bonded labour, forced labour, begging, marriage, bearing a child and so on. The homes envisioned under the 2018 Trafficking Bill (which has now lapsed) provided for little accountability on the part of the state or the NGOs that would run these homes.

Why replicate a failed model that violates the basic freedoms and dignity of Indian men and women? Why not explore community-based forms of rehabilitation that we see in the Bonded Labour System (Abolition) Act, 1976?

Your research on human trafficking suggests that criminal law is, in fact, not the solution – even though laws like India’s anti-trafficking Bill 2018 often make it out to be. You instead suggest an approach based on reforming and implementing labour and social welfare laws. What are the changes you think are needed, and why do you think criminal law shouldn’t be the focus?

There are various approaches to addressing trafficking, including the criminal law approach, the labour law approach and the development approach. Indian law manifests all three approaches.

However, long before Western countries started dealing with ‘trafficking’ by investing in a criminal law approach, parliament responded to Indian realities in the 1970s and 1980s by enacting labour laws on bonded labour, contract labour and inter-state migrant labour to deal with practices that we today identify as trafficking – namely where a worker is taken to a far-off place by contractors or agents like sardars or khatadars to work in large construction projects on the payment of railway fares only. They would work there for seven days a week without fixed hours and under extremely poor conditions.

Also read: India’s Proposed Commercial Surrogacy Ban Is an Assault on Women’s Rights

The Supreme Court interpreted these laws to say that forced labour, prohibited under Article 23 of the constitution, would be any work that was paid less than the minimum wage. This jurisprudence was adopted in the case of the Mahatma Gandhi National Rural Employment Guarantee Scheme, where it has been proven that implementing MGNREGS properly reduces vulnerability to trafficking and distress migration.

Thus, while there is a place for criminal law in addressing trafficking, I argue that we need to implement existing laws that were passed to address Indian realities rather than rely on a criminal justice system based on a colonial edifice. In fact, at a recent meeting, a police officer-turned-bureaucrat spoke about how they struggled to fill positions in the Anti-Human Trafficking Units.

Moreover, the Trafficking Bill 2018 uses the Immoral Traffic Prevention Act, 1986 as its template and practically extends an anti-sex work model to other labour sectors, which will produce absurd results.

A lot of your work – across issues such as sexual violence, human trafficking and surrogacy – talks about how ‘carceral politics’ is dangerous for criminal law, in that it ignores the root causes of social phenomena and punishes the symptoms with more and more draconian measures, to keep up with societal anger. What do you see as the alternative, and are there any laws or systems in place anywhere in the world that you think are moving away from the carceral model in a meaningful manner?

The alternative for now is to simply halt passing any more criminal laws. It is time to take stock of the criminal laws on sexual violence on the books and understand in a deep manner how they relate to each other. Even at a definitional level, there are glaring inconsistencies.

Further, some are new laws, some like the Criminal Law (Amendment) Act 2013 and 2018 build upon the Indian Penal Code. These laws were passed at different times and have different internal structures and logics, and come to a clash when implemented.

In a country like India, where the implementation of criminal laws is poor and uneven, we need to then assess exactly how these laws are being implemented and what changes we need to make in the crime reporting process to obtain the necessary information on how the law is being used. We need to then urgently reallocate our scarce resources in targeting the worst cases of sexual violence rather than prosecute the high number of consensual sex cases that currently clog the courts. We urgently need sentencing guidelines. Alongside this, we need to revive a civil liberties tradition that questions the excesses of criminal law.

Are there models we can look to elsewhere? Not quite. The carceral politics of sexual violence is alive and well around the world and has not quite run its course. It is only now that in many countries, feminists are realising that rape law reform has yielded little by way of actually reducing the sexual abuse of women and that instead, states have used the sexual violence agenda to become more carceral.

This is the case for anti-trafficking laws as well, where even two decades since the negotiation of the Palermo Protocol on trafficking, even in the West, the rate of conviction is very low. Hence, here we must consider the full range of regulatory options and use labour and social welfare laws to effect economic redistribution in ways that will render men and women less prone to forced migration and extreme exploitation.

Given that you think carceral laws create a vicious cycle, one that needs to be broken, how would you answer the demands of victims and survivors of sexual violence, for instance, who want to see perpetrators punished?

I don’t want to be seen as saying that we don’t need the criminal law. We do need the criminal law and there is a place for it in our society. But we need to ensure that criminal laws are rational, reasonable, respond proportionately to the harm caused and, above all, that they are implemented.

Also read: Reimagining How We Talk About Rape and Rapists

Certainty in implementation of the law in its letter and spirit is the surest way of securing the interests of victims. When laws are not implemented, there is a temptation to ask for more draconian laws that are implemented even less, because of the bad conscience this may give judges, while compromising the right to fair trial guaranteed under our constitution and overcriminalising consensual sexual relations at a time when sexual mores are undergoing a dramatic change.

The #MeToo movement created ripples over the last few years across the globe, including in India. What is your take on the movement, and do you see differences in how the movement unfolded in the West and in India? If you do, what explains these differences?

I think of #MeToo in the context of the failures of the state in regulating various arenas of life through command and control regulation, leading to what some scholars calls “institutional bypasses”, non-state forms of regulation, name and shame strategies, and self-regulation. So it is not entirely surprising to find a similar move in the context of sexual harassment and sexual assault.

It is valuable in rendering the whole spectrum of unwelcome sexual conduct, whether it amounts to a legally sanctioned offence or not, and in the process stimulates conversations about changing sexual mores and practices and how men, women and transgender persons can pursue fully erotic lives without the risks of sexual abuse.

Also read: Why the New Ordinance for Death Penalty for Rapists Won’t Do

What distinguishes the US and Indian contexts is the extensive bureaucracy on sexual violence on campuses set up under Title IX, which was tied to federal funding; many of the feminist debates on how to understand consent in sex had already played out there in relation to laws, policies and institutional structures. However, what has been interesting to see in the Indian context are calls for deemphasising the elitist discussion of #MeToo to take up the underlying challenge of #MeToo to the vast majority of Indian women working in the informal sector and rural areas.

There have been some progressive recent court judgments around sexuality and criminal law in India – such as the decriminalisation of homosexuality and adultery. Do you think that reflects a systemic change in how the judiciary is viewing the overlap between sexual relations and criminal law?

These progressive judgements on adultery and homosexuality are very welcome, but the judiciary can barely keep up with the new legislative measures that seek to overcriminalise sexual relations in the name of protecting vulnerable victims. Once they become law, it is a much harder task for the judiciary to effectuate damage control.

The courts become saddled with the job of monitoring the implementation of laws (eg POCSO) and when challenged on constitutional grounds can only read down select provisions. Therefore, it is too soon to say that there is a systemic liberalising move on the criminal law of sexual relations.