Content Warning – This piece discusses law and policy around child sexual assault.

India witnessed yet another episode of toxic masculinity and a predominant rape culture thriving with the youth of the country, and not just the illiterate or disadvantaged, but educated, young children. Yes. On Sunday, certain screenshots of a chat group on the social media platform ‘Instagram’ with the name “Boy’s Locker Room” caused mass unrest among the internet users and has now been addressed by the Delhi Police. The issue involves a chat group with young 16-18-year-old boys and girls, sharing lewd photographs of women, often morphed, resulting in gross objectification and sexualization of underage girls, roughly of 16 years of age, which became even more problematic when messages sent by certain members of the group suggested gang-rapes and other sexually violent acts against the girls. This issue has caught enough attention to attract the Delhi Commission for Women to issue a notice to the Delhi Police and Instagram. This has sparked a very indispensable conversation about the rape culture that permeates within the society. This also forces people to reconsider the entire debate of the validity of the death penalty in rape cases and its effect on society. Moreover, a rather interesting perspective that has also evolved with the debate is society’s reaction to the behavior that has been shown by the children here in conflict with the law, since they are juveniles. The prospective application of Section 74 of the Juvenile Justice (Care and Protection of Children Act) 2015 has also been raised.

Distribution of Objectionable Photographs of Minors

Can the distribution of morphed objectionable photographs of minors be defined as “child sexual abuse” and be treated the same as child pornography? The Indian Criminal Law has termed the circulation of such objectionable photos as crime, under the POCSO Act. Section 11(v) penalizes anyone who threatens to use, in any form of media real of fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act. Moreover, Section 13 of Chapter III of the act also penalizes whoever uses a child in any form of media (including…over the internet…) for sexual gratification.

The act of sexual harassment in the form of photographs or the form of child pornography has been criminalized under the Information Technology Act, 2000, with Section 67B of the act criminalizing the publishing and the circulation of material with depictions of children in explicit sexual acts. The Indian Penal Code, 1860 also criminalizes the possession and circulation of the obscene material. Now the question remains whether a juvenile accused of the act can be tried under POCSO Act? A recent trend has seen courts take affirmative stance on the issue, where the juveniles have been sentenced under the POCSO act. This significantly raises stakes over the issue.

The Persistence of a Rape Culture

There is no denying that the acts committed by the members of the Boys Locker Group are wrong. Legal and moral magnitudes have mandated different stances on the issue and have further surfaced the arguments that do not just create this culture but also help it thrive. One such argument that has been made is that these acts are not anything unique, and everyone has a locker room. This is a modest version of the cacophony Men’s Rights Activists often associate themselves with. Diluting sexual misconduct and sexual remarks as regular locker room talk is extremely problematic. The other argument that even women objectify men is just the foreshadowing of the “asking for it” argument. If you think about it, the act of objectification became problematic with the dilution of the entire female identity into just bodily characteristics. The value of a woman’s existence when brought down to physical attributes reduces a woman’s existential importance to the man’s approval of their existential utility, hence, the word objectification. The other set of arguments try to build a case for those juveniles accused of these acts is that they have yet not committed any act which should hold them liable for anything. Frankly, the word ‘yet’ seems to answer this question a little louder than we expect. So will this culture be solved by the deterrence offered by the law in cases of rape?

The Death Penalty has Uncertain Effects

The death penalty has been a very contentious issue throughout the history of modern legal consciousness. The debate has been observed in classic cases like Mithu v. State of Punjab where the mandatory death penalty was termed unconstitutional. This case laid down a foundational understanding of the concepts of constitutionalism concerning the state protecting the lives of the people and the use of mandatory death penalty provisions. With time multiple pieces of legislation have mandated death penalties. There has been no decision by the Apex Court striking the laws down. This also needs to be seen with the understanding that Bachan Singh v. State of Punjab provides, wherein the court lists the entire process of capital punishment which is restricted to the rarest cases. Most importantly, Justice Bhagwati’s dissenting judgment became a pioneer for anti-death penalty arguments, which find the inspiration in his words to call the death penalty inherently arbitrary and a crime against humanity.

The hanging of the Nirbhaya Rape Convicts and the killing of the 2019 Hyderabad Gang-Rape Accused gathered a lot of praise and appreciation. It is natural for society to crave revenge and retribution for the heinous acts that have been committed. One such major change can be observed in the punishments for aggravated rape cases.

“(i) A rapist who during the crime causes the death of the victim or causes the victim to be left in a “persistent vegetative state” shall be punished by death under the Criminal Law (Amendment) Act, 2013.
(ii) Following the Nirbhaya Gang Rape case in 2012, repeated gang rapes were also held to be punishable by death under Section 9 of the Criminal Law (Amendment) Act 2013.
(iii) The rape of an 8-year-old Kashmiri girl i.e. Asifa Bano case caused the amendment in the Criminal Law (Amendment) Ordinance, 2018 which said that the death penalty may be imposed for the rape of girls under 12 years of age, and the minimum punishment is 20 years in prison, along with a fine.”

But the question now remains: do these provisions and the decisions, either by the court or the public appreciation of Hyderabad encounters, solve any problem whatsoever? The 262nd Law Commission Report has already asked for abolishment of Death Penalty for almost all of the above-mentioned crimes, and to restrict it solely to crimes of terrorism. The understanding that these death penalties do not deter the idea of rape but make the crime even more heinous in most of the cases is catching traction.

Disclosure of the Names of Children in Conflict with Law

Last, but not least, there is the issue of sharing the screenshots. Section 74 of the Juvenile Justice (Care and Protection of Children Act) 2015 clearly states that,

“74. (1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with the law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published.”

This clearly states the stance of the law regarding the circulation of the names of the accused on the screenshots carelessly, without much care about the law or the objective of the law behind this section.

Recommendation

Is breaching section 74 the only way to directly attack rape culture? The fact that many of the students, who were girls jumped to the defense of their friends should not be seen as a pacifying factor in this storm. These female members of the group are also part of the problem. The fact that the chats and the private conversations of such gruesome nature have been publicly revealed is probably causing more deterrence than the idea of capital punishment. And, probably the shaming might shift from the victim to the perpetrator. Or, should we stop and ask ourselves why there is a group of 14, 16 and 18-year-olds who find it okay to have such degrading conversations about women, especially in a time when the issues of women rights and safety are being discussed everywhere. This should also be seen with the issues of rising domestic violence cases, an exponential increase in the number of people screening pornographic videos and even searching for child pornography.

A society should most certainly look into the issue of sex education as a solution, without giving a pass to the perpetrators of such crimes. But probably what is more important is that every time a woman stands up for her story, and reports any such incident, the story is taken seriously. I recognize that I as a man am less likely to face these circumstances and I welcome feedback from those who face this firsthand everyday who are far more qualified than I to speak.

Kaustubh Srivastava is a 3rd Year, B.A.LL.B. (Hons.) candidate at Dr Ram Manohar Lohiya National Law University, Lucknow, India.

Suggested citation: Kaustubh Srivastava, Boys’ Locker Room: Does Indian Rape Culture Need a Better Deterrent than the Death Penalty?, JURIST – Student Commentary, May 7, 2020, https://www.jurist.org/commentary/2020/05/kaustubh-srivastava-boys-locker-room-india/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org