The accused have totally violated all the canons of human behaviour, tenets of human dignity and, therefore, one may say that this offence assumes [a more] serious nature than murder because of the brutality and gruesome nature with which it was committed. — Dr. Mrs. Shalini S. Phansalkar-Joshi, Principal Judge, Bombay City Civil Court & Sessions Judge, Greater Bombay
Agreeing with the prosecution view that the three repeat rapists in the Shakti Mills cases were “sex-starved wolves,” Judge Phansalkar-Joshi decreed on April 4 that “each of them be hanged by the neck until they are dead.”
The judge, like others, had no doubt about the heinous nature of the offence committed and decided to award the death penalty under the new Section 376E of the Indian Penal Code.
In tune with the cries for extreme vengeance that have been heard since December 16, 2012, Delhi rape (and murder) case, the judgment, the first under the new law, was cheered in some quarters.
But this blood thirst has its own worrying ramifications. Murder and rape cannot and should not be equated. It would — as women’s activists fear and repeatedly stressed — have a bearing on the further safety of the woman who has been raped. Moreover, this is based on the presumption that rape is indeed the end of life.
The notion of ‘honour’
The notion of “honour,” activists have long argued, flows from patriarchal paradigms that are embedded in our society. The changes in law relating to sexual offences were an effort to move beyond the paradigm, but the Shakti Mills judgment brings the issue back to square one.
Judge Phansalkar-Joshi devoted much effort to point out that (even though it was not a murder case), it fell in the rarest of rare category and, so, death for Vijay Jadhav, Qasim Sheikh and Salim Ansari was the only option.
In her 232-page judgment, the Judge relied heavily on the contention of Ujjwal Nikam, special public prosecutor in the case, who argued that any leniency shown to the “sex-starved wolves” would be a “mockery of justice.”
Mr. Nikam also argued that rape was an offence, which was “fundamentally and materially different from other offences. It leaves [a] permanent scar on the victim.” According to him, “injury of the body can be healed but injury to the mind and honour of the victim can never be healed.” Echoing the sentiment, the judge pointed out that in a previous rape offence, also at Shakti Mills, the three accused had already been sentenced to life imprisonment.
“Hence, to emphasize on gravity of the offence of gang rape being committed repeatedly, if the legislative intent of treating it as a graver offence is to be given effect to, then also no lesser punishment than death can meet the ends of justice. There is no other alternative left in this case except to impose the death penalty, in the large public interest and to maintain integrity of human dignity,” she argued (emphasis added).
The judge also felt that there was no chance for reformation of the accused, two of whom — Vijay and Qasim — had been twice held guilty on charges of theft by the Juvenile Justice Board — but were released on the bond of good behaviour.
“With the growing age, the accused have become worse. The moment they became major, they started indulging in sexual offences…the question is how many times such opportunity is to be given if they are misusing it and meanwhile subjecting the victims to untold trauma and creating a feeling of insecurity in the entire women folk as such?” she demanded to know.
It was this very public “hang them” demand following the December 16 case that led to substantive changes in the law, much of it incorporated at the instance of sensitive activists and lawyers.
Not everyone who protested after the gruesome incident was for the death penalty in rape cases, but the executive and Parliament went ahead and introduced the extreme punishment.
‘A regressive step’
Keen to douse public anger after a slow response, the government went beyond the recommendations of the Verma Commission, which was set up in the wake of the Delhi rape-and-murder case, and did not recommend the death penalty in rape cases.
“In our considered view…seeking of death penalty would be a regressive step in the field of sentencing and reformation,” the commission said.
“Undoubtedly, rape deserves serious punishment…Rape is very often accompanied by physical injury to the victim and can also inflict mental and psychological damage…However, we believe that such offences need to be graded. There are instances where the victim/survivor…can…overcome the trauma and lead a normal life,” the Commission said.
In India, the notion of “honour” is not far from what “khaps” and their so-called panchayats decree. This medieval form of lynch mob justice has no place in modern India. The quicker we move away from invoking “honour” in sexual offences, the easier it will be for us to tackle the problem.
Restoring harmony?
Analysing the Delhi rape-and-murder judgment of September 2013, Aparna Chandra, who teaches at the National Law University, Delhi, argued, “Courts can pick and choose their law from a menu of competing formulations of the rarest of rare doctrine and contradictory standards of which factors are relevant and/or determinative of aggravating and mitigating circumstances.”
The four sentenced to death in the Delhi rape-and-murder case were described as “beasts” (read wolves in the Shakti Mills matter) — which makes their “extermination” by the State more palatable — Ms. Chandra wrote in her piece.
“Retributive theories of punishment work on the assumption that the crime is a disruption of social harmony, and that this harmony will be restored and justice will be served by visiting an equally strong punishment on the offender. In restoring status quo ante, however, we forget that such status quo is not necessarily harmonious or just,” Ms. Chandra added.
By sounding the death knell in the name of sending out a strong signal, including in the Shakti Mills and Delhi cases, judges seem to be addressing the society’s collective conscience. Just like the convicts in the Delhi rape-and-murder, those sentenced to death in the Shakti Mills rape cases are the dregs of our society — they are persons our society has no time or inclination to correct or reform.
Harsh, dramatic sentences are not going to alter societal behaviour or usher in a culture of equality and respect for women. They are unlikely to deter potential rapists either.
amit.b@thehindu.co.in
