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.
The Pioneer, 19 December 2000