Author: Sandhya Jain
Publication: The Pioneer
Date: December 19, 2000
By a cruel irony, India's
greatest woman leader, the late Prime Minister Indira Gandhi, has become
a yardstick for the denial of justice to women. Invoking the criteria
of the "rarest of rare crimes," the Supreme Court recently commuted the
Delhi High Court's death sentence on a man who had raped and murdered an
eighteen-month-old girl child. The move has come as a bitter blow
to those who had hoped that the growing environment in favour of women's
empowerment and human dignity would see a crackdown against the degradation
and abuse of women and children.
During his tenure as
Chief Justice of India, Mr. Justice A.M. Ahmadi publicly acknowledged
the need for greater sensitization of judges in the matter of crimes against
women. Since then, the apex court has given a landmark ruling on
sexual harassment in the work place, but obviously much ground remains
to be traversed till justice is done, and seen to be done. Perhaps
we need more women judges. Certainly we need a much sharper interpretation
of law than appears to have been applied in the present case. A beginning
can be made by de-linking the death penalty from the political paradigm
in which it was placed at the time of Mrs. Indira Gandhi's assassination.
As one who covered the
Indira Gandhi assassination trial in the precincts of Tihar Jail, I would
like to share some thoughts about the concept of "rarest of rare crimes".
It is well known that the terrorist movement in Punjab, regardless of who
was responsible, had deeply divided Hindus and Sikhs, and that Mrs.
Gandhi's assassination was almost unanimously viewed as an 'execution'
by the Sikh community. It was in that surcharged atmosphere, compounded
by the murder of assassin Beant Singh, the near-death of Satwant Singh,
and the anti-Sikh riots in Delhi, that the trial was conducted in the premises
of a fortified jail.
The learned judge had
an unenviable task before him. He may have been aware that notwithstanding
the merits of the case, political attitudes would determine the reaction
to his verdict, even among Hindus! As it happens, many Hindus to this day
remain unconvinced about the guilt of Kehar Singh (who also received the
death penalty), and there is an overall feeling that the conspiracy was
not properly investigated.
Be that as it may be,
it was in this context that the judge enunciated the doctrine of "rarest
of rare crimes," to justify the death penalty to Satwant Singh and Kehar
Singh. I have never subscribed to the view that the murder of a sitting
Prime Minister should be condoned. Indeed, this fact alone should
suffice to award the death penalty to those who deserve it. But by
articulating the concept of "rarest of rare crimes," the judge unwittingly
established a convention whereby the death penalty stood virtually abolished
except in the most exceptional (read sensational) case. This is truly
unfortunate. In the years since 1984, we have seen an unparalleled
rise in crime against women and children (male and female); we have also
seen a phenomenal increase in ISI-sponsored terrorist activity across the
country. A de jure or de facto abolition of death penalty in such
an environment can only embolden criminals across the board.
The Supreme Court would
do the nation a sterling service by re-examining its framework for awarding
the death penalty so that ordinary citizens who knock at its doors come
away with the sense of having received justice. The political contours
of the Indira Gandhi murder case are simply too restricting to tackle the
horror and depravity of crimes that are becoming almost a daily occurrence.
If there is a further spurt in the graph of crime against women and children,
will we legitimize it as an established societal norm? I ask because these
crimes are becoming increasingly common, there is nothing 'rare' about
them.
In the present case,
the child concerned was not simply a minor (a term that applies to all
under-18 year olds), but a toddler. She may perhaps have started
learning to talk. But as a mother I can say that a one-and-a-half
year old child, even if she can speak, is too young to even be chastised
for wetting her nappy and not giving notice that she needs to be taken
to the bathroom. She cannot be expected to handle a rape, even if
she survives the assault. If a man can take an infant barely two
feet tall and subject her to rape, and then murder her, what further standard
of degradation is necessary for him to qualify for the death penalty? It
may be borne in mind that his guilt was upheld at each stage of the trial,
a fact for which the investigating police officers, doctors and prosecution
deserve kudos and gratitude.
In this context, it is
to be hoped that the forthcoming Women's Empowerment Policy, prepared by
the Department of Women & Child Development, can satisfy women's enhanced
aspirations and expectations for gender justice and equality. The
imperative to make the legal system more gender sensitive and responsive
to women hardly needs to be stressed, particularly in matters of sexual
assault and other forms of abuse, such as domestic violence.
We need specific new
laws to tackle the new forms of deviance and depravity, with punishment
commensurate to the gravity of the offence. We cannot, for instance,
countenance the continuation of invisible 'quotas' for the award of the
death penalty where the crime is so heinous as to make one's blood curdle.
In countries like Singapore, the death penalty is strictly awarded to those
found guilty of trafficking in drugs. There is no need to be squeamish
about it. In the Indian context, the death penalty should be stringently
applied in all cases of rape-cum-murder and trafficking in women, and all
acts of terrorism resulting in the death of civilians and security personnel.
Rape can be meaningfully
tackled by framing laws taking cognizance of the gamut of the offence.
Rather than clubbing all minors under a single statute, the law could take
notice of the rape of infants (0-9 years), pre-pubescent minors (10-13
years), minors (14-18 years), as also of adults. There is, of course,
no case for leniency in any category. The molestation-suicide of
the 14-year old Ruchika in Haryana and the rape of the aged Bhanwari Devi
in Rajasthan show that women remain equally vulnerable at all ages.
They need a vigilant and responsive legal system at all times. If
the NDA government is serious that 2001 should truly be a Year for Women's
Empowerment, women must first and foremost be given a sense of physical
security.
Besides growing instances
of child abuse and domestic violence (no doubt a reaction to women's demands
for dignity and human rights), there is an urgent need to legally recognize
'caste rape' and 'caste violence' as especially humiliating forms of abuse.
Over the past three decades, there has been a sickening rise in rapes of
lower caste women (often in front of family members) who are becoming assertive
of their rights and dignity (for instance, Bhanwari Devi). Recently,
in Gujarat, a Dalit woman was disrobed and beaten for fetching water from
a common well, as a result of which her husband committed suicide.
No civilized society can continue to countenance such crimes, and as the
prevailing law is obviously unequal to tackling such offences, new laws
are the need of the hour.
