1/30/2014

Democracy is not always the will of the majority - Hindustan Times

Thursday, January 30, 2014

Ruth Vanita, Hindustan Times
January 29, 2014
First Published: 21:08 IST(29/1/2014)
Last Updated: 21:13 IST(29/1/2014)

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Democracy is not always the will of the majority

Democracy involves subjecting ourselves to a difficult discipline. We are often tempted to equate democracy
with the simple will of the majority. The problem with this was demonstrated in Athens, the birthplace of
democracy, when a majority of citizens voted to execute Socrates. To guard against such miscarriages of
justice the political thinker Montesquieu recommended separating the judiciary, the executive and the
legislature, a principle incorporated into all modern democracies. What Montesquieu could not anticipate is
the way media, especially social media, would come to dominate public opinion.
An independent judiciary is only one element in the configuration of principles required to protect citizens
from the type of justice meted out to Socrates. Two equally important principles are innocent until proven
guilty and guilt proven beyond a reasonable doubt'. Today the media and the public often act as judge, jury
and executioner, much like the cat in Alice in Wonderland who sits in judgement over the mouse.
For example, much of the media projected the Talwars as guilty even before the trial in the Aarushi-Hemraj
murder case began. As a result, a man attacked and injured Rajesh Talwar. This was a replay of the way
Moninder Pandher, accused and later acquitted in the Nithari killings, was condemned by the media and
attacked by a mob.
Likewise, in cases of alleged rape, until the facts are proven, dubbing the accused a rapist and the
complainant a victim, as the media routinely do, is wrong. This is particularly urgent in view of the draconian
provisions of the Criminal Amendment Act, which allows the death sentence for a second rape conviction,
and defines a demand or request for sexual favours as sexual harassment, punishable with rigorous
imprisonment up to three years or fine or both. Asking a woman if you can hold her hand or kiss her is a
request for a sexual favour. But until one takes the risk of requesting, how would one know whether the
request is welcome or unwelcome?
Making sexually coloured remarks is punishable with imprisonment up to one year or fine or both. Either
telling a woman she has nice legs or using a four-letter word could be considered a sexually coloured remark.
Such language could make a woman feel uncomfortable but should it be punished with a years
imprisonment?
The term sexual favour is a Victorianism, revealing puritanical, anti-sex assumptions. This puritanism
appears to be spreading worldwide, under the aegis of a certain type of feminism. At the American university
where I currently teach, some feminists have tried to impose a conduct code on campus, using almost exactly
the same language.
Second, the new law reverses the burden of proof, so that rather than being proven guilty, the defendant has
to prove his innocence. The law states that once a sexual act is proved to have taken place (including if the
man agrees it took place), the womans statement that she did not consent, unsupported by other evidence, is
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1/30/2014

Democracy is not always the will of the majority - Hindustan Times

sufficient to convict the man of rape. Is it really impossible for any woman ever to make a false statement in
such a matter, out of confusion (think Adela in EM Forsters A Passage to India) or vindictiveness (say, if he
promised marriage and backed out later) or if she is paid to do so?
Some may argue that if a person is guilty, why bother treating him as innocent until proven guilty, and why
worry if he is convicted without proving the case beyond reasonable doubt. Why should we resist the
temptation to ignore these two principles of justice? Because democracy and the protection it offers citizens is
fragile, like many beautiful things. If today a guilty person is convicted in this way, tomorrow an innocent one
could be convicted in the same way. And that innocent person could be you, or me.
Ruth Vanita is a feminist scholar and a co-founder of Manushi. The views expressed by the author are
personal.
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