Debolina Dutta is a feminist lawyer and activist, and presently a doctoral fellow at the Institute for International Law and the Humanities, Melbourne Law School. This post originally appeared on Infochangeindia.org and can be found here http://infochangeindia.org/human-rights/analysis/letter-to-death-penalty-lovers-on-facebook.html
The death penalty for some of those who raped and killed Jyoti Singh Pandey may bring a sense of satisfaction to some. But let’s not fool ourselves by calling it justice. It’s more like revenge, says Debolina Dutta
My dear death penalty lovers on Facebook,
FB walls have always been a quick and easy source of knowledge, news and views from around the world. On politics, tan removal, cinema, social issues, how to have a fulfilling love life, how to lose belly fat in three days, home remedies for gas and constipation, and how to tackle violence against women in 10 steps, to name a few. Now, FB walls serve another purpose. They make visible the walls that divide our thinking (on the abovementioned issues and more), to such an extent that many real-life friendships have met their untimely virtual demise (read: un-friended) when confronted with the ideological walls that divide us. I am not a fan of eliminating people from my life — real and virtual; which is why I am resorting to this letter.
Since Friday the 13th of September a lot of love has been lost over a raging debate: whether the death penalty for the four men convicted in the rape and murder of Jyoti Singh Pandey is a just punishment or not. But before that, let us refresh our memories on the unfolding of events. This will also enable us to momentarily take our eyes off the blinding effect of the spectacle called the death penalty.
Flashback: Jyoti Singh Pandey was a 23-year-old student of physiotherapy residing in Delhi. On December 16, 2012, she was returning home after watching a film with her male friend, like so many of us, when she was brutally raped and murdered by six men in a running bus. On December 29, 2012, Jyoti succumbed to her injuries and died in a hospital in Singapore. The brutality of the incident led to intense anger; unprecedented protests broke out in Delhi and other cities in India. The most tangible achievement of the December protests has been the report of the three-member Justice Verma Committee, set up by the government to recommend changes to the criminal law on sexual violence. The least tangible result has been the formation of a smug self-congratulatory Delhi gang who feel that if it wasn’t for saddi Dilli, this wouldn’t have happened. But let us move on with the ‘facts’.
Then came the tamasha of the government’s emergency ordinance, which later became law in record time. This law, of course, watered down many of the JVC recommendations. It did not criminalise marital rape, allowed the armed forces to escape command responsibility in cases of rape. But thank god for small mercies, because otherwise it would have led to the wrecking of our precious families and the defence forces would not be able to defend our country well because insurgent women would accuse them of rape at the drop of a hat. Especially in places like Manipur and Kashmir where the men in uniform are deeply loved. The law, however, provided for the death penalty as a punishment for repeat offenders, and when rape leaves the victim/survivor in a vegetative state.
While we were celebrating our legal achievements (along with Valentine’s Day), on February 14, 2013, three minor siblings were raped and murdered and their bodies dumped in a well in Bhandara district of Maharashtra. Much earlier, in 2004, Thangjam Manorama was abducted by the Indian army on suspicion of being an insurgent, raped, and was found dead the next day with a bullet through her vagina in Manipur. In 2006, Tapasi Mallik was raped and burned alive by Communist Party goons in Singur, West Bengal, and a mother and daughter, Surekha and Priyanka Bhotmange, two dalit women from Khairlanji in Maharashtra, were sexually assaulted and murdered by dominant caste men. In 2007, Laxmi Orang, a young adivasi woman, was stripped naked, thrashed, and paraded by a violent mob in broad daylight in Guwahati, Assam. In 2009, Neelofar and Aasiya Jaan were raped and murdered by India’s paramilitary forces in Shopian, Kashmir. In 2011, in Dantewada, Chhattisgarh, police officer Ankit Garg watched as junior police personnel stripped adivasi schoolteacher Soni Sori naked, administered electric shocks, assaulted her, and then inserted stones into her vagina and anus.
None of these incidents saw countrywide public protests. There was no high drama on FB either. I mention these cases here not to raise predictable questions about our selective anger (because that way wouldn’t one be forced to spend a lifetime only feeling angry?), but to congratulate ourselves that we were finally able to express our anger at something. Jyoti Singh deserved our collective anger against a social system that enabled conditions for such a heinous crime to be committed in the first place. So did the other women in the list above. But let us not lose focus, as many would say. What Jyoti Singh suffered was horrific, and I am glad we see eye-to-eye on this.
The Delhi police were, thankfully, unusually prompt in arresting the six men accused in this case. The district court of Saket tried five of the accused. The Juvenile Justice Board (JJB) tried one of the accused, a minor, separately. The JJB ascertained the age of the minor to be 17 years and six months on the day of the crime, based on his official documents. In a 33-page chargesheet by the Delhi police, the minor was described as the most brutal of them all.
March 2013 onward, a trail of ironies became part of this case. On March 11, one of the five who were in Tihar Jail committed suicide by hanging himself under the watchful eyes of the jail authorities. Not something to be alarmed about because, according to the latest 2010 data from the National Crime Records Bureau, 92 inmates have died in Indian prisons of ‘unnatural’ causes like suicide and murder. It was divine retribution that took care of a criminal, perhaps, who knows? Better still, it was divine justice because it also saved some amount of the taxpayers’ money. Let us hope that money will now be used to build even better roads and flyovers in Delhi.
On August 31, under the Juvenile Justice Act, the minor who was no less brutal than the other perpetrators, was convicted of rape and murder but sentenced to a maximum of three years’ imprisonment in a correction home. This is the maximum sentence under this law. Further, the three years will include the eight months that the minor has already spent in the remand home during the trial! The fate of the four other convicts — the majors — was, ironically, very different. On September 13, the court sentenced the four men to death by hanging. To sum up — one died in prison, one is going to be out of prison in three years, and four go to the gallows (one of them is only 19 years old!). Such are the vagaries of the laws of our land.
Return from flashback: FB, since the 13th, has been our comfortable battleground for drawing blood on whether or not the death penalty ‘awarded’ to the four convicts is just punishment in the case of the rape and murder of Jyoti Singh.
Let me start with what I consider to be the thrust of this debate: the efficacy of the death penalty in general. To put it bluntly and emphatically, I am absolutely against it. It goes against both my feminist beliefs (that it has any capacity to make even the slightest impact on incidents of gender-based violence) and my understanding of the workings of the criminal justice system (which is objective only in name, but deeply prejudiced in practice) as a human rights lawyer. But let me keep my beliefs to myself and proceed on the basis of ‘commonsense’ which, I would like to believe, is the one thing we all have in common.
Most rationalists in support of the death penalty believe that this case met the judicial criteria of ‘rarest of rare’ and was therefore justified. The ‘rarest of rare’ formula, which is what apparently guides the court in deciding whether a criminal can be sentenced to death, is an elusive one. It entered the legal vocabulary in the Bachan Singhjudgment in 1980. Amnesty International and the People’s Union for Civil Liberties conducted a detailed analysis of Supreme Court (SC) judgments from 1960-2006 to reveal that ‘rarest of rare’ is no foolproof legal standard that has guided the court. The report notes that in several cases — for example Lok Pal Singh v State of MP(AIR 1984 SC891), Mahesh s/o Ram Narayan and ors v State of Madhya Pradesh [(1987) 3 SCC 80], Darshan Singh and anr v State of Punjab [(1988) 1 SCC 618], and Ranjeet Singh anr v State of Rajasthan [AIR 1988 SC 672] — the death penalty was awarded as punishment but there was no mention of the crime being a ‘rarest of rare’ one. Similarly, there are instances where the crime committed was similar to cases where the death penalty was awarded, but the judge decided against it. In Mukund Alias Kundu Mishra and anr v State of Madhya Pradesh (AIR 1997 SC 2622),the Supreme Court commuted the death sentence awarded by a lower court. It agreed with the lower court that it was a heinous crime as it involved the death of two minors, but it did not think it was a ‘rarest of rare’ crime. Another judge in Ravindra Trimbak Chouthmal v State of Maharashtra [(1996) 4 SCC 148], a brutal case of dowry death, had not awarded the death penalty stating that dowry deaths are not rare in the country any more.
This is the tip of the iceberg of inconsistencies in applying the ‘rarest of rare’ doctrine. The history of death penalty judgments by the Supreme Court is riddled with examples of a judge’s subjective application of the standard. Many years after the Bachan Singh case, judicial ambiguity surrounding the ‘rarest of rare’ qualifier has not acquired any clarity. I’m sure the rationalists would elicit sincere doubt about it even in Jyoti Singh’s case.
Justice Bhagwati, who was the only judge against the death penalty in the Bachan Singh case, had said:
“The question may well be asked by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Article 14 and 21?”
Just as a reminder, Article 14 is the Right to Equality, and 21, the Right to Life.
Let us look away from legal anomalies and turn to the ‘rarest of rare’ standard from the point of view of the ‘victim’s’ family and friends. In Jyoti’s case, her parents have time and again made it clear in public that the only punishment that would ‘satisfy’ them is the death penalty. Isn’t a heinous crime committed against our near and dear ones the ‘rarest of rare’ for all of us? Isn’t every incident of brutal harm caused to people we love and care about worthy of the harshest punishment available in our justice system? But no matter what we may wish, we let the courts decide whose grief is rare and whose isn’t. And it is clear that courts decide on a matter subjectively. Given that judges’ subjective decisions are based on wide-ranging inconsistencies, can we resort to a punishment like the death penalty, which is irreversible?
The irreversibility of the death penalty, which means that should an accused be wrongly convicted (and there is ample evidence to suggest that the judiciary can make mistakes), there is no way of undoing the situation. In 2012, the Columbia Human Rights Law Review brought out a detailed report on the case of Carlos DeLuna, who was executed in Texas in 1989 for murder. As the report’s investigation revealed, the court’s decision was erroneous, and the actual murderer, most likely a man called Carlos Hernandez, was living freely. Through thorough investigation, the report demonstrates how in DeLuna’s case so many of the factors that led to his execution had gone wrong: a poor person being represented by an inexperienced defence attorney who was no match for a professional prosecutor; faulty identification by eyewitness; police misconduct; destruction of DNA evidence. The review of DeLuna’s case, more than two decades after his execution, refuted the claim made by some proponents of capital punishment that the United States has never executed an innocent person. The report shows how irreversibility of the death penalty should be a cause for concern for any justice system. You might argue that in Jyoti Singh’s case there is no room for doubt or mistake, therefore the irreversibility point does not hold good. Unfortunately, the law doesn’t work through single cases; the fate of future cases will be tied to this one.
There is a global trend towards abolition of the death penalty, either in law or in practice. This has exposed another myth: that the death penalty acts as a deterrent. Because there has been no resurgence of crime following the abolition of the death penalty in these countries, it can be said with certainty that it does not stop potential criminals from committing heinous crimes. But as many of you have pointed out, India is not yet in the league of global powers that ‘can afford’ to abolish it. We only ought to try and maintain parity between economic orders with other ‘progressive’ liberal democracies. The dollar and the rupee must have the same value; cell phones and tabs must be available at the same price as elsewhere; individuals must be equally rich here and there. Law and order, and justice, is a different matter. Hail progressive liberal India!
We want more deregulation of the economy because that is what corporate globalisation demands. But we will not abolish the death penalty, despite its globalisation. There is a bizarre sense of faith in the state and its machinery when it comes to the administration of ‘justice’ through the death penalty. That faith takes flight the moment we broach the topic of rising onion prices! How come we are able to trust the state — the entity that we constantly accuse of being irreversibly corrupt, ineffective, and unprofessional — when it kills people? Yes, we might call it punishment, but it is also called killing. I agree that killing a person who has brutally raped and killed a woman may bring an emotional sense of satisfaction to some. But let us not fool ourselves by calling it justice. It is more like revenge. Justice serves a greater purpose — it challenges the system that allows this vicious cycle of violence and violations to continue. Dhananjay Chatterjee was hanged years ago; correct me if I am wrong, but I don’t think it changed anything.
Finally, is such an extreme punishment like the death penalty desirable in cases of gender-based violence like rape? When we demand an equivalent punishment for rape and murder, what is the message that goes out with it? That rape is a death-like experience? Jyoti Singh’s case may be different, because she died of the injuries that were caused by sexual assault/rape. Nonetheless, the sexual nature of the assault that caused her death — brutal insertion of a rod into the vagina that damaged her intestines — plays a significant role in why you might deem the death penalty to be just punishment for the perpetrators. But what if Jyoti had not been raped but murdered as brutally? What if the iron rod had been inserted into her mouth, or her eyes? Would that have outraged you as much? More importantly, what if Jyoti had been a transgender woman, or a sex worker? Would it still be gender-based violence? What if this incident had happened at the hands of her family members? She might have been one of the many women whose deaths go unnoticed, even if they were a result of patriarchal violence. What if, despite the brutality, she had managed to survive — would we have treated the assailants with less hate? These questions do not have easy answers, but they ask us to invest more attention to what we demand as justice in the face of brutal crimes, because we need to be accountable for the precedents our demands will set.
The death penalty is a quick-fix masquerading as an ultimate form of justice. In its momentary and spectacular flamboyance (there used to be a convention where judges delivering capital punishment would ceremoniously break the nib of the pen with which they wrote the judgment) it leaves intact every structure of inequality that it claims to undo. If the claim is that the death penalty can end violence against women, albeit gradually, by that logic it should also eventually end patriarchy. Fortunately, commonsense tells us that the death penalty doesn’t serve this purpose.
The only thing we can be sure about is that none of us can say with certainty that the death penalty serves any good beyond a false sense of achieving justice. And if we cannot be certain, considering the finality of death, it cannot continue to exist unchallenged as an arbiter of justice. If the end/goal that we want to reach is a violence-free and equal world, it is important that we chart a non-violent path to reach that goal. The means cannot be in conflict with the end.
And since it all started with FB, here’s my post again, from that bleak day that got me to write this letter:
‘As part of the legal system, I know enough of the troubled histories of the death penalty to know it doesn’t serve the purpose of justice and will yet again perpetuate a dangerous precedent.
‘As a woman, I know that nothing will change for us — especially those of us who do not have class, caste, sexual and religious privilege on our side. We will continue to get raped and murdered at home, in the streets, and in custody.
‘But my ray of hope? I know that I can always count on my FB friends and their friends who support the death penalty to kill in my name, should I get raped or murdered.’
Thanks for reading.