Brutality finds front page space in national dailies of India, becoming headlines and topic of debate on the television, around sofas, and on social media. There is outrage, an outpouring of grief, and disbelief over the actions of the perpetrators. Their inhuman actions earn them epithets of being “animals”, “beasts”, “brutes”. And what do animals, beasts and brutes deserve, other than to be put down?
Conversations on bringing justice to the victim echo simultaneously powerlessness and immense power, in the form of the masses’ anger. Something must be done to the perpetrator; a permanent settlement, only then can this thirst for justice be quenched.
What Balagopal argues
Against this grain of thought, K. Balagopal, the late human rights activist and jurist, asks, “Is justice retribution? If by hanging someone, we want to deter others, are we not punishing them for others’ presumed crimes? ”. This line of engagement is important to engage with. In the context of recent events, and analysing his arguments from his essay, “Of Capital and Other Punishments”, let us engage in some considerations.
In this essay, Balagopal formulates law from the “premise it has attributed to itself”, namely, “that it lays down and enforces norms of life that afford standards of justice in situations of conflict”. This is necessary in order to not have resolutions based upon “the relative strength of the two sides, which is detrimental to the interests of the weak”.
These “norms of life” are based upon a shared moral code, one that society ought to live by. This means that laws are derived not from what “Is”, i.e. not how society actually functions, but on the basis of an aspirational society implying that justice is not “an eye for an eye”, but rather, the development of ethics.
In a liberal democratic polity, wherein laws and regulations are supposed to be derived from the consent of the majority, the upholding of public justice requires the masses’ consent. Thus, while the judge passes the sentence, it is society that takes responsibility for dispensing justice.
But, this conception does not relate to the impulses of mob rule. It is entrenched firmly in providing a civilizational answer to injustice, either brutal or mundane. A contradiction emerges: how do we expect actual societal impulses to carry out the law prescribed by the moral code of ideal society? By understanding that the ‘Ought’ understands what ‘Is’, and stops it from intruding upon its space. In simpler terms, ideal society keeps real society from regressing away from it.
Thus, the law cannot be based upon base instincts. Justice must find its justification in reason, not on the exacting of revenge: cut off an arm if an arm is cut off, torture a torturer, indeed, even rape a rapist. If so, then social order is based merely on fear. There is nothing further to aspire towards, except to make suffering the norm.
Thus, there should not be an exception made for the death penalty, either. Even if we disregard the JS Verma Committee report formed in the aftermath of the Nirbhaya incident, which acknowledged that the death penalty doesn’t actually deter criminals, we have to contend with the desensitization towards the death penalty imposed by the state. If the state cannot maim a perpetrator of violence (for instance, pouring acid on the face of a criminal convicted of acid attack), then it is crueler to extinguish life itself. This dissonance is not new. For all medieval laws, society was conditioned to accept the legal responses, no matter what they were, from an impersonal or indifferent perspective. In our quest for justice, we must question this modern conditioning. We must understand what the philosopher Ramin Jahanbegloo has asserted: “there is a common humanity and there are limits which we cannot transgress without contradicting our shared moral values.”
A humanised criminal justice response
Balagopal offers a way into breaking this mould. “The Death Penalty excepted, the modern Indian penal law has a uniform punishment for all crimes… which is supposed to simultaneously act as both deterrent and corrective,” he argued, “The prospect of such deprivation is supposed to act as a deterrent, as well as keeping society out of his arms’ reach for a while, and… is expected to engender in the convict a state of remorse that may act as a corrective.” There is “no need to break with this logic” when it comes to capital punishment.
The next step here, he asserts, is to “humanise the logic of incarceration as deterrence as well as corrective”. That prison is a site where reform is a possibility. That reform is possible because it houses not beasts, or animals, but humans. That, indeed, we must understand the humanity of the rapist.
This seemingly shocking statement becomes less shocking once we understand the current vicious cycle that dehumanisation perpetuates. Pratiksha Baxi states that “a dehumanised criminal legal system necessarily dehumanizes the victim, too”. She cites how there is scant provision in India for handling rape victims with dignity, as in majority of cases, no clothing kits are provided to rape victims after taking evidence. This is in spite of tough guidelines existing for the same. Why is there seemingly no outrage over this?
Then, there is the perpetuation of crime on criminals by the State, wherein women and trans prisoners are subjected to strip searches in the most violent ways. Balagopal writes how “most policemen and prison officials believe that prison sentences… are by themselves not sufficiently efficacious as a deterrent to crime, and must be supplemented by an inhuman treatment that is nowhere written in law.”
Hence, by humanising the criminal, we move towards both a victim-centric approach to justice wherein the rehabilitation of the victim’s life is given priority, and the cycle of criminality necessarily brought about by dehumanisation of the accused, is stopped.
The onus of such changes is our collective responsibility, because we are collectively culpable in creating the conditions for crime. In the mercy plea for commutation of two Dalit youths’ death sentences, who were responsible for the burning of a bus in an attempt to rob its commuters leading to the unintended deaths of over 20 people, Balagopal notes a few important points. First, that these two youths were driven to abject poverty. Second, that they were inspired by the “heroic” movies on crime and vengeance. And third, that since both are borne out of social factors, “to hang the two men is to absolve society - and all of us - of all responsibility in the matter.”
What this means in the context of contemporary calls for death as a response to rape
In the context of the RG Kar case, this has an added significance. While India has come a long way in terms of social progress, it nonetheless remains a deeply patriarchal society. The unequal power relations between the sexes is reinforced both internally, as in certain gendered expectations of behaviour, and socially, through enforcement of norms and in media. Sexism, be it covert or overt, itself dehumanises women as potential “targets”, and the general masculinist ideology itself inculcates “retribution” against rape all the while large institutions “comfortably.. [tolerate] rape in law, society and polity”.
Retributive action against rapists is nothing more than perpetuation of the system that tolerates rape institutionally. It tries to shield its overall structure by valiantly pronouncing its actions against errant crimes; conveniently hiding that it is the institution that condones and nurtures it, and even covers it up.
This is why Asok Kumar Ganguly refers to RG Kar as “state-sponsored crime”. It is not difficult to understand why: there are credible allegations that the State attempted to destroy evidence, the administration at RG Kar attempted its best to hush up the unfolding of the crime and the civic police volunteers under the Trinamool Congress had been given unchecked power to be brazenly criminal.
This is why the West Bengal government hastily passed the Aparajita Bill against the backdrop of protests. This bill has been roundly criticized for its lack of clarity, haphazard legislation, and impractical guidelines. For the present discussion, it is suffice to note that the bill also has a mandatory provision for the death penalty in case of conviction of rape.
Such thrust given to the death penalty as “solution” for rape underscores the previous points regarding absolving of society and the State from the crime as well as not having a victim-centric approach to justice. This is not only endemic to West Bengal; the Bharatiya Nyaya Sanhita, 2023 has also been critiqued along similar lines for “exceptionalising rape” as a crime committed solely against women.
The only way forward is to fight against this tendency of societal absolution. A good policy framework is found in Section 376F proposed by the Verma Committee Report, which allows for prosecution of public servants who fail to command police or armed forces to take reasonable measures to prevent or repress the commission of sexual violence.
We need more such measures that make the state, society and its citizens culpable for sexual violence. Only then can such an engagement with justice showcase significant progress in society.