Carceral Feminism and Ideas of Justice In India

By Sanjukta Bose

The death of George Floyd at the hands of police in Minnesota, USA was a flashpoint in the African American struggle against systemic racism that triggered large-scale protests not just in America, but also in different parts of the world where BIPOC communities continue to face discrimination and experience an erosion of their human rights. This also reignited conversations around police abolition which has created a space where activists have been proposing alternatives to the state apparatus to access justice. 

In India, the death of father-son Jayaraj and Benicks in police custody in Tamil Nadu briefly brought conversations around police reforms to the fore among liberals in the country, which as of now, appears to have died down already. As reductive as this argument may be, but in a country where we haven’t even succeeded in sustaining a conversation about the need for police reforms, police abolition currently appears to be a distant dream at best. To put this into context, the 2006 police reform directives recommended by the Supreme Court continue to exist only on paper. 

Police abolitionists like Luis Fernandez, Alex S. Vitale, Joshua Briond have opined that abolition is a process and a means to an end, and not the end itself. Fernandez says, “Asking the question ‘what are alternatives to policing?’ is to ask the question ‘what are alternatives to capitalism?'” It is not something that can happen at the flip of a switch and is one of the many radical changes that societies need to go through to challenge the hegemony of racist, capitalist, settler-colonial power structures.

The police system in India is a colonial relic, modeled on the Royal Irish Constabulary, in the aftermath of the Revolt of 1857. The pyramid structure of the force, with less than 1% supervisory positions and a constabulary that takes up 86% of the police force, ensures that the force is answerable only to its administrative superiors and not the people. Upendra Baxi writes in The Crisis Of The Indian Legal System that when a decolonized state inherits the colonial policing system that does not adapt itself to the aspirations of a free nation, it inadvertently inherits a colonial-repressive police organization and political regimes that exist to serve the governing elite.  

All of this points to the fact that police abolition in India would require a different approach, one that would take into account the complexities and problems unique to the Indian society, instead of co-opting the tenets of the Western police abolition movement. The police system in India is inherently tied to the caste system, upheld by principles of Brahmanical patriarchy that work to uphold the status quo and quash minority rights. 

In India, with its track record of extrajudicial killings and state-sanctioned violence against minorities, it is impossible to even begin the conversation about police abolition without first addressing our overwhelming reliance on a punitive and retributive form of justice, which oftentimes has bordered on vigilantism and extrajudicial ‘punishments’. This phenomenon is most evident in the way we, as a culture, have responded to the crisis of sexual violence against women in India. 

What Is Carceral Feminism?

Carceral feminism is understood as a “reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence.” It is the belief that longer and harsher prison sentences or punishments will help reduce crimes against women in society. 

The term was coined by feminist sociologist Elizabeth Bernstein in a 2007 article titled The Sexual Politics Of The New Abolitionism. In her paper, Bernstein talks about how evangelical Christians and anti-trafficking feminists have come together since the early 2000s to create the discourse of human trafficking and sex work (they make no distinction between the two) as a form of ‘modern-day slavery’. In this context, Bernstein defines carceral feminism as “the commitment of abolitionist feminist activists to a law and order agenda and… a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”

Since then the definition and scope of carceral feminism have come to include all forms of sexual and gender-based violence against women. Carceral feminism relies on punishing the individual via the state judicial apparatus for crimes that reflect a larger systemic and social problem. It reinforces the victim-perpetrator binary which fails to address issues of sexual violence against women beyond the level of the individual. 

Carceral Feminism In India

There is no doubt about the fact that women in India are not safe. In a 2018 survey conducted by the Thomson Reuters Foundation, India was named the most dangerous country in the world for women. It fared worse than war-torn nations like Syria and Afghanistan. 

The Delhi gang-rape case of December 2012 was a moment of reckoning in India. The nation-wide protests had finally catapulted conversations around rape and sexual violence into the mainstream. In the aftermath of the protests, the Indian state decided to appease public anger by passing the Criminal Law (Amendment) Act of 2013, which widened the definition of rape, increased jail term in most sexual assault cases, and included the possibility of the death penalty. It also defined newer offenses, such as the use of criminal force on a woman with intent to disrobe, voyeurism, and stalking. These reforms did little to solve the crisis of sexual violence that continues to plague Indian society. In March 2020, over 7 years after the incident, the four accused in the Nirbhaya case were hanged to death and the country rejoiced as justice had finally been delivered, even though the juvenile accused was released from a remand home in 2015. Essentially, this is what carceral feminism looks like. For proponents of carceral feminism, justice is served as long as there’s someone to suffer at the hands of a vengeful system. 

In December 2019, a 27-year-old vet was raped and murdered in Hyderabad. Within a week, news broke that the local police had shot dead four men suspected of committing the crime who were attempting to flee. Celebrations broke out across the country and people lauded the police on social media. In a country where it can take decades for justice to be delivered, with nearly 150,000 rape cases pending before courts, the quick action by the Hyderabad police seemed to have restored the public’s faith in the criminal justice system. Meanwhile, the voices condemning this extrajudicial killing remained in minority.

The paradox here is that dissatisfaction with the law with regards to sexual violence in India has rarely ever prompted conversations about reforming the existing criminal justice structure, let alone abolishing it. The solution has always been to call for stricter laws and punishments within the existing structure, without ever examining the efficacy of the structure itself in the first place. We cannot talk of prison abolition without first changing our perception of justice itself.

What does justice for victims of sexual violence look like?

Justice for survivors of sexual violence is not just about providing closure to the victims and their families, which is what we often hear from those who justify the death penalty as punishment for rape. The desire for castrating the rapist, publicly executing them, awarding the death penalty to them is not synonymous with the desire for justice. Indian cultural imagination celebrates the rape-revenge fantasy in its movies and in the way it reacts to sexual violence. 

In a country where, on average, 87 rapes happen every day, rape cannot be considered an isolated incident of violence. To do so is to shirk collective responsibility and accountability, to refuse to acknowledge our complicity in this culture where women do not have the freedom or dignity to live meaningful lives of their own. The death penalty to the rapist does nothing to change societal mindsets that allow this problem to exist in the first place. It leaves no space for critiquing the state institutions that create an atmosphere of impunity. Human rights activist K. Balagopal had said about his opposition to the death penalty:

“For every crime that is committed, society carries some responsibility, as well as the individual who has committed. Society has created the conditions that impel or motivate the person that commits the crime. It is therefore partly responsible for it, along with the individual who has intentionally decided to commit the offense.” 

Despite our reliance on the criminal justice system as a tool for ensuring accountability, it became apparent during India’s #MeToo moment in 2018 that even when women came forward with their accounts of sexual harassment, these were not enough to ensure due process under the law. Those accused of sexual harassment, like MJ Akbar, slapped defamation cases against the women as a reaction. On the other hand, the 2013 sexual harassment of a young reporter by Tehelka Editor-in-chief Tarun Tejpal was proof of how the justice system itself could be manipulated to re-victimize the survivor.

Despite our declining faith in the criminal justice system, it continues to be our only recourse for redressal. When I hear of friends and acquaintances facing sexual harassment of any sort, my first instinct too is to ask them to report the same to the police. This dependence and lack of alternatives make it even more difficult to imagine a future where justice can be served through non-retributive, transformative mechanisms that prioritize community efforts at changing individual behavior alongside the structural forces that produce it, instead of incarceration and punitive justice. 

Clare McGlynn wrote in Feminism, Rape, and the Search for Justice:

“What constitutes justice for rape victims? Is it seeing the perpetrator convicted and imprisoned for a significant period? Is it being believed and treated with respect by prosecuting authorities? Is it receiving compensation, from the offender or the state? Is it having the opportunity to tell one’s story in a meaningful way, perhaps directly to the offender? The answer, of course, is that justice for rape victims can take any or all of these forms, as well as many more possibilities. The problem is that it has come to be so closely associated with punitive, carceral punishment that other means of securing justice have been almost completely obscured.”

Carceral Feminism and state-sanctioned violence against women

Our critique of carceral feminist responses to sexual violence will remain incomplete if we do not address the prevalence of state-sponsored violence against women. Who protects women when the state apparatus itself is responsible for the violence?

As I have been writing this piece, reports have surfaced of a 19-year-old Dalit girl in Uttar Pradesh (Hathras district), India being sexually assaulted and brutally murdered by men from the upper caste Thakur community. For two weeks since the attack on September 14, she fought for her life in a hospital and ultimately succumbed to her injuries on September 29. A day later, her body was cremated by the local police who refused to let her family take her body home. Though reports stated that the accused were booked under the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, local leaders, the police as well as liberal upper castes refused to acknowledge that it was a case of caste-based violence and not just sexual violence. 

There is no denying the fact that people belonging to marginalized communities are disproportionately incarcerated in India, despite the high prevalence of discriminatory violence committed against them. On average, two out of three under-trials in India belong to Dalit, Bahujan, and Adivasi communities. More than one in five under-trials are Muslims, the highest among religious minorities. Caste prejudices and over-policing of certain marginalized communities are important social factors that motivate processes of justice in the current political scenario. At the same time, the Hathras case highlights how dominant identities are exempt from nuanced judgment when they find themselves on the wrong side of the law. Refusal to accept the rape of Manisha Valmiki as a caste atrocity erases any possibility of justice that is truly just. It also puts forward a reductive understanding of sexual violence that ignores caste discrimination as a motivator.

The state institutions that form the basis of the carceral system allow this to happen by providing impunity to those belonging to powerful and dominant families or caste identities. 

In Chhattisgarh, Soni Sori, an Adivasi human rights lawyer, was taken into police custody in October 2011 on charges of helping the Maoists, for which she remained in custody till 2013. She reported in the Supreme Court, that she was raped in custody and stones were put inside her vagina. The police denied allegations and nothing was done about it.

Women in Kashmir and the northeastorth-east region who have been sexually assaulted by the Indian Army have nowhere to seek justice because the state itself is the perpetrator. Everyday Dalit women are raped and murdered, yet they can’t seek justice because it is the state itself that upholds caste patriarchy by insulating upper caste perpetrators from accountability. Carceral feminism and its insistence on punitive justice fail to extend its solidarity to those who lie at the intersections of gender, caste, class, and racial violence. No increases in jail sentences could end police violence and the culture of impunity. 

In response to the Delhi case, as well as the Hyderabad case, public outrage resorted to demands for death sentences for the accused, so much so that #HangTheRapist became a trending hashtag on social media. However, such rallying cries fall on deaf ears when the perpetrator is a political leader such as in the Unnao and Kathua rape cases or an upper-caste man such as in the case of  Dalit women who face sexual violence. It is easier to imagine a rapist as a strange man hiding in the bushes, waiting to attack women than it is to see them as products of the society, as decent individuals whose duty it is to uphold the tenets of law and justice. In this regard, it is worth noting that according to the 2018 National Crime Records Bureau report, 94% of the perpetrators in rape cases were known to the victims. When we think of sexual violence against women, it is important to address our biased understanding of who a perpetrator is. 

Where do we go from here?

We cannot simply reject carceral feminism without first pondering over what the possible alternatives could be. Our critique of carceral feminism is pointless if we cannot use the same to carve out a path that helps us move towards a justice system that is inclusive as well as transformative. 

The first step forward would be to recognize that violence against women is a system of oppression that is perpetuated through the very political, social, economic, and judicial structures we rely on for redress.

Ejeris Dixon wrote in Beyond Survival: Strategies From The Transformational Justice Movement:

“Violence and oppression break community ties and breed fear and distrust. At its core, the work to create safety is to build meaningful, accountable relationships within our neighborhoods and communities.” 

Activists around the world have been tirelessly working to devise creative ways of community organizing that create spaces for both accountability and healing. The idea behind restorative and transformative justice is to redistribute power and create sustainable community engagement around systemic problems, instead of resorting to reactionary measures that are manifested only after a crime is committed. Such practices function on the basic principle that crime and harm are violations of an individual and interpersonal relationships, rather than violations of the law. 

For example, among the members of the Navajo nation in America, hozhooji naat’aanii, meaning peacemaking, is the primary process of resolving issues of domestic violence and harm. It aims to help the offender realize what they have done is wrong, instead of punishing them. It involves both the offender and the victim coming together, joined even by relatives and other members of the community, to get to the root cause of the conflict. Robert Yazzie, Chief Justice Emeritus of the Navajo nation, in an interview with the  International Institute for Restorative Practices (IIRP) explained how peacemaking practices in the community are also a method of decolonizing themselves from the Western world. 

Presently, NGOs in India have also been utilizing such practices to create accountability and facilitate healing. Different kinds of restorative circles- such as peace circles, listening circles, harm circles, grieving circles, reintegration circles- are employed, depending on what best helps the survivor. However, right now these function primarily as processes to aid the legal system and not as an alternative.

Such community approaches provide a flexible and communicative environment where survivors can heal and address their trauma, while offenders have a chance to grow and learn. The goal here is to eradicate the root problems of inequality, and not the individual offender who is as much a product of such inequalities as the victim. Restorative justice is not a system of mediation that arrives at some settlement between victim-perpetrator. It transforms relationships of harm, and always prioritizes the needs of the survivor over anything else. Practitioners of restorative justice in India have found that it provides a greater sense of justice to the survivors, reduces chances of recidivism, and helps to reintegrate both victims and perpetrators back into their communities. Particularly in the cases of child sexual abuse, where offenders are known to the victims in most cases, it helps families come to terms with the harm caused and helps carve a path forward that does not destabilize families. 

Having said that, a critique of carceral feminism cannot simply function on the notion of a binary opposition between carceral and non-carceral feminism. Critics of such a binary opposition are right to say that by itself transformative justice may not be enough at all times to ensure accountability and state intervention may be necessary to some degree to legitimize such processes of justice. Sometimes efforts at transformative justice can also end up causing more harm than good, as there are chances of revictimization of the survivor in the presence of such power imbalances in an informal setting. This is why the way forward is not to replace one system with another, but rather to be open to imagining several spaces and forms of justice. Anna Terwiel has written in her paper What Is Carceral Feminism that the way forward is to envision a ‘spectrum of de-carceration’ that could ground a more expansive feminist abolitionist politics.

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