Terra Firma

Justice for the victim, and the perpetrator

The December 16 Delhi gang rape case convicts (clockwise from top left) Akshay Kumar, Pawan Gupta, Vinay Sharma and Mukesh Singh. File photo  

By focusing excessively on vilifying the four convicts and their defence lawyers, our media has again given us a distraction rather than direction.

In the recent Oscar-winning documentary Citizen Four, whistleblower Edward Snowden speaks about the reason he revealed his identity within a week of the NSA revelations becoming public. “The modern media has a big focus on personalities,” he says, adding “The more we focus on that, the more they are going to use it as a distraction.” Snowden here refers to excessive focus being placed on the messenger rather than on the message. He feels that had he not revealed himself, the media would have focused more on finding him rather than analysing the revelations he made.

This also sums up the way our media and our political establishment has reacted to India’s Daughter, Leslie Udwin’s documentary on the Delhi gang-rape and its aftermath. Instead of trying to get a holistic picture of the vision of the director, we have limited our focus to personalities — like the accused, the defence lawyers and the filmmaker. In that, we in media have been more successful in vilifying the perpetrators rather than giving an understanding of the broader issues at hand.

The rapists are among the products of the patriarchal culture of which we are also a part. So does the solution lie in labelling the convicts “animals,” “beasts,” and “devils,” or, as happened in Dimapur this week, in lynching? Or, does it, as Leila Seth says, lie in education?

Five of the perpetrators were sentenced to death while the sixth, a juvenile, was sent to a correctional home. The brutal crime came under the “rarest of rare” cases which convinced the judges to award capital punishment. However, could the case have been viewed differently? The documentary does provide some answers.

Some of the eminent personalities interviewed — Sandeep Goyal, the jail psychiatrist; Amod Kanth, the head of Prayas, an NGO that works with rape victims and juveniles; Leila Seth, one of three members of Justice Verma Committee — speak about the need for better education, in terms of sensitising our society. Maybe the education should start with the convicts?

Here, it would have been much more useful had Udwin focused more on the perpetrators’ background. Interviewing them to increase the shock quotient could have taken a backseat.

Some questions that she could have focused more on include: What were the circumstances under which the individuals grew up? What was their childhood like? Did they face threats when they were growing up? Did they face sexual assault, molestation in their own childhood? She did go to the convicts' villages and speak to their family members. However, the selective nature of the content she culled out ensured that the contextualisation of the convicts' background did not happen.

Here, I am reminded of a conversation I had over the phone last year with Sujatha Baliga, an associate director at the National Council of Crime and Delinquency (NCCD), U.S. Ms. Baliga is an expert on restorative justice — a concept which believes in bringing the victim in dialogue with the perpetrator — and has handled many difficult sexual assault cases. The dialogue requires consent of both the victim and the accused, something that was rendered impossible in this case.

Ms. Baliga spoke of her visits to prisons in the U.S., some of them housing convicts jailed for life, people with no chance of parole. She said for most of them, the sexual assault and violence they perpetrated was just a replication of what they experienced in their own childhood. Sexual violence was a means for many of them to communicate in the only language they had been taught, the language of violence. The perpetrators had also once been victims. So can the solution lie in teaching them a better language?

Ms. Baliga was clear that the template could not be force-fitted into Indian context. Also, in the case of the Delhi gang-rape, the scope for it was very low, considering that the victims' parents wanted the six to get death penalty. However, that shouldn't stop us from considering it as one possible alternative while dealing with such cases.

> This article illustrates how restorative justice was applied for a rape case in U.K., one in which the victim insisted on having a dialogue with her rapist, ultimately making him feel the gravity of the crime he committed. In the process, both of them achieved a sense of closure.

Needed: Justice not vengeance

In 1754, Italian enlightenment scholar Cesare Beccaria published his first book Dei delitti e delle pene (An Essay on Crimes and Punishments). The book held that the purpose of punishment should not be vengeance or retribution but the reformation of the criminal and prevention of future crimes. In other words, punishment should integrate the criminal rather than marginalise an already condemned one. Integration was something which, Beccaria felt, capital punishment failed to do.

He also believed that backwardness in the method of punishment was indicative of backwardness of the society in general. To quote him, “countries notorious for the severity of punishments were also those in which the most bloody and inhuman actions . . . were committed”. India fits well into this statement.

Is there an alternative way of approaching such rape cases other than labelling the four rapists as “animals,” “beasts” and “devils”? Perhaps the solution has to begin with labelling them “humans,” as people like us who, as the psychiatrist Sandeep Goyal says, had "antisocial traits in them, which actually manifested very badly at that time”?

Breivik case: Norway's humane judicial system

As I referenced > here, we can consider the example of a society with one of the most advanced Human Development Indicators, Norway. The way Norwegian criminal justice system and its society dealt with an equally violent offender, Anders Behring Breivik, give us an insight into the democratic maturity their nation has achieved.

Having committed 77 murders on that fateful Saturday in July 2011, Breivik would have been certainly given the capital punishment if his crime had come under either Indian or American jurisdiction.

However, in Norway, the criminal justice works differently. He was convicted for murder, treated as a terrorist and sentenced to 21 years imprisonment, the maximum given by Norwegian jurisprudence. More than the final verdict, it is the way in which the Norwegian judicial system handled his case and its society reacted to it that makes the case a trendsetting one.

By considering him a product of their own society, the court showed that Norwegian judicial system was above the primordial instincts of revenge and retribution. The judiciary also recognised that Breivik was just one element of the overall Ultra-Right malaise that has seeped into European polity. In doing that, Norwegian legal system sought to demonstrate that its democracy was above the basal instinct of vengeance.

In the same way, our society needs to recognise that the “antisocial traits” spoken about by Sandeep Goyal, the psychiatrist interviewed for the documentary, are present in even the more “civilised members” of our society. The onus of having an effective deterrent punishment so that those traits don't manifest in the form of criminal acts is upon our Constitution, the three pillars of democracy and the society in general.

This would require a more far-reaching reform, but the immediate solution does not lie in "trial by the outragocracy". It lies in making the convicts realise that there is no place for such deep-rooted hatred in a many-splendoured democracy like that of India. They need to come face-to-face with their criminal intent and made to reflect on the grotesqueness of it. Keeping them in isolation and giving them the hangman's justice would provide instant gratification but not a sense of closure. They need to live with the burden of guilt, not be hanged with it. Our prisons need to be made well-equipped to accommodate them while making their remaining life meaningful by providing them, education and livelihood opportunities inside.

Even here, Breivik's example acts as a viable starting point. About a year after being given the sentence, Breivik — just as unrepentant as Mukesh Singh appeared to be in the documentary — applied for a political science course in University of Oslo. The university showed willingness to accommodate him. Ole Petter Ottersen, the rector of University of Oslo welcomed him to study, not from the campus but from prison. The rector explained his decision through a piece in The Guardian where he said the course would give Breivik a chance to learn about the values of democracy, human rights and justice, giving him an opportunity to explore the human side of his personality. Otterson ended the piece with this: “Having been admitted to study political science, Breivik will have to read about democracy and justice, and about how pluralism and respect for individual human rights, protection of minorities and fundamental freedoms have been instrumental for the historical development of modern Europe… in his cell he will be given ample possibilities to reflect on his atrocities and misconceptions.”

Perhaps, India would do well to take inspiration from Norway’s example? Perhaps we can start by telling ourselves that Mukesh Singh and his accomplices are not beasts” but “humans”? Perhaps giving them life imprisonment, making them realise the brutality that was inherent in their actions — including the fact that it was they, not the victim who were responsible for the killing — and giving them some rudimentary education on the core values of the Indian Constitution will showcase our democratic maturity? Getting outraged and giving convenient adjectives to the perpetrators can act at best as a 140-character meme. Educating them on democracy and helping them realise what we, as their more educated, less-biased, accommodating fellow citizens, believe it will provide a closure, justice for both the victim and the perpetrator. In that, our tears, our concerns, our anxieties need to accommodate both the parties — even if they are at opposing points of the moral spectrum.

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Printable version | Jul 29, 2021 2:47:49 PM | https://www.thehindu.com/opinion/blogs/blog-terra-firma/article6971843.ece

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