… And justice for all

No matter how heinous the crime, dialogue, forgiveness, reconciliation can find a place in our quest to find justice at the end of the tunnel

June 26, 2013 06:33 pm | Updated June 07, 2016 12:35 am IST

This is a blog post from

Reality conspires with nature, and perhaps, providence to create the most poignant fiction. Reading about violence -- in its many-splendored nature -- taking place across the world in form of war, terrorism, vendetta, gang rivalry etc. has made me realise how little our human civilisation has progressed. These mindless acts, with casualty figures reaching unthinkable proportions, when written as fiction, when sung as songs, when staged as plays, would each easily out-manoeuvre those sublime Greek tragedies.

Considering that a vast number of genetically possible human beings are nonexistent -- out of the human beings who could have come alive, which is two raised to the power of 32,000, only 40 billion of us have actually been born, a fact which Jim Holt calls ‘contingency with a vengeance’ -- does it make any emotional or rational sense to authorise taking someone’s life and justify it by telling that it is proportionate to the gravity of crime committed by the concerned person? Would that provide a sense of justice to the victim vis-a-vis the oppressor?

Justice. Healing of wounds. Sense of closure. Subjective concepts which are different for different countries? However, The Universal Declaration of Human Rights states in the opening of its preamble:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”

Wouldn’t taking someone’s life as a form of punishment -- capital punishment -- amount to a violation of the ‘inherent dignity’ even if it is done ‘as established by the law’?

If capital punishment violates the dignity of a person, what could be an appropriate punishment/deterrent for crimes as heinous as rape, murder, act of terror, gun violence?

Guilt is premised on an individual being conscious of his actions and of its possible repercussions when he commits the act. So the individual ‘knows’ that he doesn’t have any right to harm a fellow human, yet in a moment of weakness, does it. Would that moment/those moments define the entire personality of the individual?

Repaying, with empathy

Consider this scenario:

In the mid-1940s, Mahatma Gandhi, bedridden, emaciated but resolute, was on a fast, demanding an end to communal violence plaguing our country. This was one of his last ‘experiments with truth’, undertaken to make fellow countrymen feel that such bigotry was to have no place in an independent India.

Some of his well wishers capitulated, agreed to lay down arms, took his leave and went away.

In came an angry, deprived individual, who threw a piece of roti at him. The visitor carried pangs of loss, separation and a nauseating tinge of self-righteousness. He carried the guilt of having murdered someone belonging to the ‘other’ faith by smashing the child's head as some of ‘them’ were responsible for his own son’s murder. He said he was prepared to go to hell.

The >satyagrahi remorsed -- his tears were for the oppressor as well as the victim -- and said that the angst-ridden individual still had a choice: He could adopt a child and bring him up. Only that he needed to make sure that the child was of the ‘other’ faith and he brought him up as a good person, without making the child give up his faith. This would be his penance, his punishment, his path away from hell, his justice.

The perpetrator here happened to be a layman, whose rationality had deserted him, perhaps for a few moments, making him seek revenge. The dying, old person here happened to be a former barrister, a social activist, a freedom fighter, who believed in bringing about change in the oppressor by appealing to his conscience.

This is a scene involving Ben Kingsley and Om Puri from Richard Attenborough’s Gandhi (1982). Whether the scene is an accurate representation of what happened, whether such an incident actually happened, I couldn’t verify. However, it wouldn’t be unreasonable to believe that something similar ‘would’ have happened in the riots that accompanied India’s partition.

The perpetrator could as well been a pawn like Ajmal Amir Kasab or a tyrant like Qadhafi or Saddam Hussein. What could have been an appropriate way to punish him then? Could we still have done away with desire for retribution?

Guilt in any court of law is established by proving that the person was conscious of the fact that he was committing a crime and had mens rea . So, someone with a criminal intent can be sent to the gallows or to ‘hell’? An eye for eye? That would make the whole world blind, in the words of the determined individual mentioned above.

Many countries have come to realise the barbarity behind such punishment. Amnesty records that in 2012, Latvia became the 97th country to abolish capital punishment from its legislation. This, out of 193 member countries of the United Nations.

However,many countries do retain it. Death comes in different forms and so does death penalty, some of them more inhumane than others.In countries like Iran, North Korea and Saudi Arabia, they are carried out in public. In Saudi, the victim is beheaded using a sword. In Sudan, as per a case recorded by Amnesty, as given in Wikipedia, a person’s head was ‘retrofitted’ -- taken out and put back -- before being hanged from a pole, in a public place. So, an executioner, a hitman -- the hindi term being jallad -- being entitled by law to butcher the offender.

State of nothingness

Should taking someone’s life -- reducing someone to a state of nothingness, after following constitutional due process -- to further law’s ends, find a place in twenty-first century lawbook then?

Should there be a component of retribution at all? Who stands to benefit from this? In retaliation against one act of madness, perhaps a few moments, does anyone have authority to take someone’s life?

Can’t there be a better way of accommodating the person in society, the one labeled criminal by law?

Perhaps there can be. The perpetrator can be turned into an asset for the society. This can happen only when the law attributes criminality not to the individual as such, but to a criminal component in him. It would follow that once ‘that component’ is removed, the individual can be of benefit to the society.

Can an appeal be made to a terrorist-individual’s conscience? Do militants like Hafiz Saeed and Ayman al-Zawahiri have a conscience?

Perhaps they do.

Conscience can act as a deterrent

An idealistic jailer handheld six ‘criminals’, on death sentence, to a reformative journey, with the belief that he could evoke their conscience. He assumed full responsibility for their actions and wanted to transform them by bringing out the human side of their personality. He believed that criminals could be reformed -- the guilt was but a splotch in their overall conscience. Though he succeeded, the price he had to pay was his life.

This is the bare outline of a movie, rather poetically titled do aankhen barah haath (Two eyes and twelve hands). Two eyes represent the eyes of the jailor -- the eyes he has given those ‘blind men’, the eyes of their conscience. Even after the jailor's death, the men know that those eyes would act as a check against the criminal instincts inside them.

Though, we might be tempted to dismiss this narrative as a naively creative portrayal of human nature, we have to note that this was based on reality.

V Shantaram, one of the pioneers of Indian cinema, took inspiration from an open prison experiment in Swatantrapur (Awadh) for this movie.

Again, we might be tempted to dismiss this as anachronistic. With advanced technology, human conscience is a disposable -- completely corruptible, completely radicalisable -- commodity. So, “such experiments surely would not work”, would be the response.

When I explored this a little further, I came to know of some such open prisons. However, more than the facts, >this article by a long term prisoner, who felt helped by one such prison, moved me. The individual, Erwin James, served his life-term -- 20 years -- the final two years of which were in an open prison.

“As I walk around the prison I am reminded of how much there is to care about in an open regime. The prisoners I pass appear relaxed and are unafraid to make friendly eye contact. The body language is so different to that on the landing of a closed prison. People nod and smile. From almost any angle the prison looks out over open fields.”

This is where Gandhiji’s idea of nonviolence -- appealing to someone’s reason without physically harming him/her -- is tested the most.

Justice of rehabilitation and restoration

The concept of restorative justice is one not even the most rational of minds in the country could have thought of in the aftermath of the horrific Delhi rape incident.

It was, then, fascinating to come across the concept, again based on the principle of nonviolence and compassion, through >this article . In the aftermath of the Delhi rape incident, when protesters were competing with one another to demand death penalty for the guilty, one question that arose in my mind was: Capital punishment may give the victim’s family retribution, but would it give the family members a sense of justice?

The case quoted gives a different dimension to the concept of justice. It goes thus: In March 2010, in Tallahassee, Florida, a young man, Conor McBride shot and killed his girlfriend Ann Margaret Grosmaire (both 19 at that time). A case of murder. Conor was imprisoned. Sounds open and shut?

However, just before her death, Ann, living her last moments in a hospital, uttered to her father, “Forgive him”

When asked to name the ones who could visit him while he was in jail, Conor named Ann’s mother, Katy -- their families knew each other. Katy wanted to see him -- Conor was not a murderer in her eyes -- as she wanted an explanation. She felt that defining Conor as a murderer meant defining Ann as a murder victim, which she could not allow to happen.

The Grosmaires believed in the concept of restorative justice. They chose Sujatha Baliga for legal assistance. She an advocate of restorative justice who leads National Council on Crime and Delinquency’s Restorative Justice Project.

Baliga said that under restorative justice, people who harm are held directly accountable to the people they’ve harmed. The emphasis is on dialogue and participatory decision-making. She said that it was about asking the right questions. Rather than questions about the law being broken, fixing the blame, ascertaining the punishment, the questions involved asking, “What harm has been done? What needs have arisen? Whose obligation is it to meet those needs?”

The Grosmaires chose to dialogue with the offender and his family -- the families were known to each other and they mutually decided on the punishment Conor would face. He ‘chose’ 20 years in prison plus ten years probation.

Conor said that “With the Grosmaires’ forgiveness, I could accept the responsibility and not be condemned.”

Grosmaires forgave him for their own sake. They recognised that he was not just a perpetrator, he was also a co-sufferer. They wanted closure, not retribution.

Dialogue with a rapist?

Another instance is that of a lady who insisted on >meeting her rapist in jail -- with his consent. Though the court had punished him, she did not feel a sense of resolution. She wanted him to know, understand and realise the trauma he had caused to her and her family. However, she also somehow realised that just like she couldn’t define herself based on that ‘one’ moment of victimhood, she also couldn’t define the perpetrator through his ‘one’ egregious act.

Had he refused to meet her, she would, perhaps, never have got a sense of closure.

She got permission. In course of the meeting,she explained, honestly, her state of mind. The meeting lasted for 120 minutes and, at the end of it, came something from him she deserved as part of justice, she got his apology, unexpectedly. She was willing to forgive him as she felt like “it was a genuine sorry".

She says, “He was relieved to hear that I was still doing what I do. That's what he got from it, the relief, ‘oh my God, I haven't ruined her life’.”

She ended the meeting asking him to forgive himself as she wanted him to live a successful life. She believed, "Hatred eats you up, and you can't change what's happened.”

This, in her words, was integral to her own recovery and she achieved “complete closure” from the meeting,

She wanted to release some burden -- both from her back and from his back -- so that he could look towards his future. This could stop him from repeating his mistake.

Moments of crime have their own subjectivities and so should the punishment allocated for them. The Florida case cannot be used as a template for the Delhi rape case. Restorative justice is not a replacement for criminal justice. It is based on looking at things from different perspectives so that the parties concerned realise that the offender suffers along with the victim. It is about making the offenders come face to face with their ‘criminal actions’, ‘criminal selves’ rather than labeling themselves criminal.

The objective of justice, in my honest opinion, should be: to heal the wounds created by mindless acts of a handful of people acting on an irrational philosophy/ideology. The offenders could also have done what they did to draw the attention of society to the wounds festering in their own hearts. So, justice needs to take into account not only the culpability of the guilty but also his suffering.

Can the wounds be healed by sentencing them to capital punishment? Wouldn’t it be double jeopardy?

More importantly, would the victims and their loved ones feel a sense of closure?

Rwanda, South Africa, Kenya, all offer examples of how reconciliation can be achieved even for grave offences so that a sense of closure can be conjured up.

In the case of Bangladesh war crimes trial, wounds continue to fester, in the victims’ hearts. >One such victim , Meghna Guhathakurta lost her father Jyotirmoy Guhathakurta, when she was 15, on March 25 1971.

If she gets to meet the perpetrators, she wants to see some remorse and acknowledgement on their part. Also, her desire is to see a war crimes memorial in Islamabad, along the lines of the Holocaust Memorial in Berlin. This would give her the closure she is yearning for.

Nature imposes randomness and an unpredictable amount of abstraction on human life. Let’s not give this humourless creature called law the authority to take it away by design. We already have an equally humourless creature for it: Medical science.

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