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The Hindu Editorial Analysis | PDF Download

Date: 15 March 2019

 

An abhorrent and unjust device

  • Retention of the death penalty utterly undermines India’s moral foundations On March 5, a three-judge bench of the Supreme Court delivered verdicts in three different death penalty cases. In two of those the court entirely exonerated the suspects, while in the third it not only found the accused guilty of murder, but also deserving of capital punishment. Individually read, the judgments typify the deep penological confusion that pervades India’s criminal justice system. Collectively, the cases demonstrate how arbitrary the death penalty is, how its application is mired by a belief in conflicting values, and how the fundamental requirement of precision in criminal law has been replaced by a rhetorical cry for avenging crime by invoking the “collective conscience” of society.

Conjecture and farce

  • In the first of the cases, Digamber Vaishnav v. State of Chhattisgarh, two persons were convicted of murdering five women and were sentenced to death in 2014. A year later, the Chhattisgarh High Court affirmed these sentences. But the chief testimony, which formed the backbone of the prosecution’s case, was that of a nine-year-old child, who was, shockingly, not even an eye-witness to the crime.
  • This, the court therefore ruled, was effectively a conviction premised on surmise and conjecture.
  • Ankush Maruti Shinde v. State of Maharashtra, the second of the cases, saw a gut-wrenching series of events being reduced to macabre farce.

 

  • In 2006, a trial court found six persons guilty of rape and murder and sentenced each of them to death. A year later, the Bombay High Court confirmed the finding of guilt, but commuted the sentences imposed on three of the individuals to life imprisonment.
  • However, in 2009, the Supreme Court not only dismissed the appeals filed by those sentenced to death, but also, astonishingly, enhanced the penalties of the three persons whose sentences had been commuted by ordering that they too be punished with death. In doing so, the court relied on a 1996 verdict, in Ravji v. State of Rajasthan,
  • where it had ruled that in determining whether to award the death penalty “it is the nature and gravity of the crime” alone that demand consideration.
  • Although in May 2009, the Supreme Court had declared its earlier ruling in Ravji incorrect, by holding that even in those cases where the crime is brutal and heinous the criminal’s antecedents, including his economic and social background, must have a bearing on the award of the sentence, it took until October last year for the court to recall its order sentencing the six persons to death.
  • During this time, as the court records, “The accused remained under constant stress and in the perpetual fear of death.” What is more, one of them, who was later found to be a juvenile at the time when the alleged crime was committed, was kept in solitary confinement.
  • He was not allowed to meet any of the other prisoners and was only allowed an occasional meeting with his mother. For their troubles — for having spent more than a decade on death row despite having committed no crime — the bench ordered that the state pay each of them a sum of ₹5 lakh. But while the court was quick to apportion blame on the prosecution, it didn’t so much as mention its own errors and its own proclivity to mirror the mentality of a mob.

A ‘RAREST OF RARE’ CASE

  • Yet, we might have been forgiven for thinking that the court’s experience in hearing Digamber Vaishnav and, especially, Ankush Maruti Shinde may have made it more circumspect in upholding death sentences.
  • After all, if these decisions had shown us anything, it was that the judicial process is far from inerrant. But the collective conscience of society, represented through the court’s capital punishment jurisprudence, it appears, is still alive and kicking. For in the third of the cases, in Khushwinder Singh v. State of Punjab, it not only affirmed the conviction of the accused, on charges of murdering six members of a family, but also gave its imprimatur to the award of the death penalty.
  • The murders, the judgment holds, were “diabolical and dastardly” and the case fell into the “rarest of rare” categories where “there is no alternative punishment suitable, except the death sentence”.
  • The rarest of rare doctrine has its origins in Bachan Singh v. State of Punjab (1980). There, the court declared Section 302 of the Indian Penal Code, which prescribes the death penalty for murder, as constitutionally valid, but bounded its limits by holding that the punishment can only be prescribed in the rarest of rare cases.
  • Since then, the court has repeatedly cautioned that capital punishment ought to only be decreed when the state can clearly establish that a convict is incapable of being reformed and rehabilitated. But, in Khushwinder Singh, the court does not place on record any such piece of evidence that the state was called on to produce. Indeed, the court does not so much as attempt to answer whether the accused was, in fact, capable of reformation or not. Instead, it merely endorses the death sentence by holding that there simply were no mitigating circumstances warranting an alternative penalty.

VICTIMS OF THE SYSTEM

  •  That capital punishment serves no legitimate penological purpose is by now abundantly clear.
  • There’s almost no empirical evidence available showing that the death penalty actually deters crime.
  • If anything, independent studies have repeatedly shown the converse to be true. In the U.S., for instance, States that employ capital punishment have had drastically higher rates of homicide in comparison with those States where the death penalty is no longer engaged
  • In India, evidence also points to a disproportionate application of the sentence, with the most economically and socially marginalised amongst us suffering the most.
  • The Death Penalty India Report (DPIR), released on May 6, 2016, by Project 39A of the National Law University, Delhi, for example, shows that 74% of prisoners on death row, at the time of the study, were economically vulnerable, and 63% were either the primary or sole earners in their families.
  • More than 60% of those sentenced to death had not completed their secondary school education, and 23% had never attended school, a factor which, as the report states, “points to the alienation that they would experience from the legal process, in terms of the extent to which they are able to understand the case against them and engage with the criminal justice system.”
  • Just as distressingly, 76% of those sentenced to death belonged to backward classes and religious minorities, including all 12 female prisoners

 

  • In the face of this invidiously prejudiced application, the retention of capital punishment utterly undermines the country’s moral foundations. Over the course of the last decade, the Supreme Court may well have expanded the rights of death row prisoners: delays by the President in disposing of mercy petitions now constitute a valid ground for commutation; review petitions filed by death row convicts now have to be mandatorily heard in open court.
  • But as the judgments delivered on March 5 reveal, the very preservation of the death penalty creates iniquitous results. Cases such as Ankush Maruti Shinde, where the accused, as the judgment records, were very poor labourers, “nomadic tribes coming from the lower strata of the society,” ought to make it evident that the death penalty is an abhorrent and unjust device.
  • Not only are wholly irrational criteria applied to arrive at dangerously irreversible decisions, the law’s application is made all the more sinister by invariably imposing these standards on the most vulnerable members of society. The Constitution promises to every person equality before the law. But capital punishment renders this pledge hollow.
  • It legalises a form of violence, and it closes down, as Judith Butler wrote, expounding Jacques Derrida, “the distinction between justice and vengeance,” where “justice becomes the moralised form that vengeance assumes.” From revolutions to roses Women’s Day should be an occasion to ponder over how much more is to be done for gender justice
  • On Women’s Day this year, messages clogged my inbox. They offered tempting discounts in salons, on shoes, clothes and cosmetics, and even complimentary cocktails. Despite women organizing seminars on finance, sexual harassment and health problems across the country, tokenistic marketing threatened to reduce the day to hashtags and discounts.

 The irony and history

  • On the International Women’s Day 2019 website, the partners included McDonald’s, Amazon and Oracle.
  • McDonald’s is facing flak in the U.S. for failing to pay its largely female workforce the minimum wage, Amazon is reported to have a huge gender diversity problem, and Oracle is facing a civil rights suit that alleges female employees were paid on average $13,000 less per year than men doing similar work. All three were apparently in support of the 2019 campaign theme, ‘Better the balance, better the world’.
  • The irony of all this is particularly rich given that International Women’s Day has its origins in socialism. German socialist and feminist Clara Zetkin, who organised the first International Women’s Day, was a socialist first and a feminist next.
  • In the magazine Die Gleichheit (Equality), Zetkin wrote in 1894: “Bourgeois feminism and the movement of proletarian women are two fundamentally different social movements.” Zetkin held that “bourgeois feminists” were not concerned with the conditions of working class women who were fighting not only against men who sought to suppress them, but also with men against a common oppressor, capitalism.
  • She believed that as white, upper class feminists would only fight to better their own conditions, socialism was the only way to serve the needs of working class women.
  • Zetkin suggested in the Second International Conference of Socialist Women at Copenhagen in 1910 that Women’s Day be celebrated each year, the foremost purpose of which would be “to aid the attainment of women’s suffrage”.
  • The timing for the proposal was ideal — a year earlier, the Socialist Party in the U.S. had also suggested that a National Women’s Day be observed, in honour of a strike that took place in 1908. More than 15,000 women garment workers fought for higher wages and shorter working hours in that strike.
  • Following Zetkin’s proposal, International Women’s Day was observed in a few European countries on March 19, commemorating the 1848 Revolution in Prussia when a people’s uprising had forced the king to promise women the right to vote, which he later failed to keep.
  •  But the day became truly revolutionary only later.
  • In Russia, protests erupted on March 8, 1917, against World War I and brought down the Tsarist Empire. The new government gave the women the right to vote. International Women’s Day was thus a day of resistance and demand. The reason the UN observed the day only decades later, from 1975 onwards, was because the Americans were aware of — and wary of — its origins in socialism.
  • Over the decades, women’s demands have varied across cultures. In India, for instance, following the anti-colonial and social reform movement, the Constitution guaranteed justice, dignity and equality for women.
  • However, these values came in conflict with old patriarchal values, thus limiting women’s progress. The women’s movement became fragmented, only to see a resurgence in the 1970s after the Emergency when there was a rallying cry for civil rights. This led to the birth of several women’s organisations, which successfully pushed for legal reforms. The women’s movement slowly regained strength, fighting against dowry deaths, domestic violence, and sexual abuse. However, it never really appreciated the struggles of Dalit and Bahujan women.

ISSUES IN INDIA

  • On this March 8, in some parts of the world (mostly Latin America and Europe), women continued to do what women in the early ’90s did — protest. In India, however, several companies with gender diversity and pay gap problems celebrated the day, despite the alarming trend of more and more women withdrawing from the workforce (female participation in the workforce fell from 42.7% in 2004-05 to 23.3% in 2017-18).
  • WhatsApp forwards continued to celebrate women as mothers, daughters and sisters who are able to multi-task effortlessly, underlining the widespread belief that it is acceptable for women to work as long as they also carry out their traditional duties at home. Given the huge inequality in the treatment and payment of women workers, and with labour conditions being unfriendly to women, it is important to ask what really women want on this day: roses or reforms?
  • Instead of celebrating women, companies would do well to reflect on how they treat their women: is their pay on a par with men? Are sexual harassment cells in place and do they function? Are there crèches at workplaces? And what about the informal sector, the working class women, who are not represented by “bourgeois feminists”? How do we consolidate various women’s movements across classes and castes?
  • In an increasingly unequal world, March 8 gives us the opportunity to ask ourselves how much more is to be done and how it is to be accomplished. Instead of allowing a day rooted in protest to be taken over by consumerism, women could mobilise around specific issues — better sanitation facilities and better wages — and make sustained demands for effective change in their conditions.