Delhi gangrape: With courts evoking 'collective conscience' in handing death penalty, it's time we examined our own

When the French sociologist David Émile Durkheim articulated the concept of the ‘collective conscience’, he made it a point to say he wasn’t defining it as a shared moral conscience between people. But maybe it’s time that we did. Especially in the case of a punishment as final as the death penalty.

Vani Subramanian March 20, 2020 08:01:33 IST
Delhi gangrape: With courts evoking 'collective conscience' in handing death penalty, it's time we examined our own

If we won’t learn from fact and figures, perhaps we should start with a lesson from fiction.

In Sophia’s War: A Tale of the Revolution by Edward Irving Wortis, we see the 1776 war for American independence through the eyes of a teenage girl. The book opens on a chilling scene of Sophia witnessing a public execution in New York City, then occupied by British forces. She resolves to join the war. Working as a spy, she uncovers a traitorous plot but the identity of the turncoat is so shocking that no one will believe her. She decides to prevent the act of treachery herself despite knowing she must betray a man she cares for and send him to the gallows. After many dramatic twists and turns, the plot is subverted, the traitor caught and executed, and the Continental Army wins the war against Britain. Sophia is proud and relieved, but deeply troubled. She travels to England to lay a ribbon on the traitor’s grave — a tacit acknowledgment of her role in his death, his blood on her hands.

As you read this article, four men have been executed in Delhi: Akshay Kumar, Vinay Sharma, Pawan Gupta, and Mukesh Singh, convicted of the brutal assault, gangrape and murder of a 23-year-old medical intern in Delhi in December 2012. The discussions that follow will be predictable, graphic and voyeuristic. In fact, even before the execution, the vicarious news consumption had begun. Already we had been told that prisoners from the Buxar Central Jail have spun the rope that fulfills the mandate of the Code of Criminal Procedure, 1973 which states that, ‘When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead’. We knew that the hangman had arrived at Tihar Jail to do ‘the job’. We heard that the weighing of these four men on death row had been completed, as had the testing of the nooses with appropriately weighted dummies.

We were being prepared for the ‘moment’. And now we will be told — repeatedly and in different ways — that society can heave a sigh of relief that these dastardly men have been put away for ever; that women and girls all over the country will now be safe; that the law and justice has done its job, that the deceased woman and her loved ones can finally find peace.

But who will wash the blood on our hands, if we ourselves refuse to see it?

Delhi gangrape With courts evoking collective conscience in handing death penalty its time we examined our own

Activists hold a vigil on the second anniversary of the 2012 Delhi gangrape. Getty Images

The events of December 2012 made many of us much more than spectators. We have been the voice of conscience, urging for change so that women can live the dream of being fearlessly free (bekhauf azaadi). But at the same time, we have been gullible fools, playing right into the hands of those who wish to hold greater power over our lives, and death.

Consider this: We the people, who cannot find it in ourselves to trust policemen in our neighbourhood, suddenly chose to believe the account of that terrible night in December 2012 put out by the police and the older convicts. We the people bought into the narrative that the youngest attacker commited the most heinous crimes on the victim, without stopping to think how power within a groups works, making the weakest bear the greatest burden. In fact, we the people were so angry that the juvenile had the right to be tried separately that we wanted the law to change (and we got our parliamentarians to do that!), and we wanted him to be hanged with the rest of them. Damn thinking of whether young offenders can be reformed, changed, healed. It’s a sad truth that even before they were caught, we the people had bayed for the blood of all six accused. Just as we did with Afzal Guru. And Ajmal Kasab. And Yakub Memon. And Dhananjoy Chatterjee — the last man executed in India for the crimes of sexual assault and murder.

In 2004, when his hanging was imminent we chose to disbelieve Dhananjoy Chatterjee when he categorically denied his guilt. But what do we do now, when a fresh investigation points significantly to his innocence? How do we correct the wrong we may have done to him, his family, his village, because we were too impatient to listen, too angry to care?

Dare we revisit the case of Afzal Guru? Convicted of being, at most, a co-conspirator in the Parliament attack of December 2001, Afzal soon became a symbol of everything Muslim, separatist and deplorable. Tried and declared guilty by the press from the very start, his case was deeply compromised by poor representation, as well as the sheer derision and disbelief that surrounded his every assertion. His repeated appeals to investigate Deputy Superintendent of Police (DSP) Davinder Singh and other Jammu and Kashmir police officers for introducing him to one of the men who attacked Parliament and asking him to arrange logistics fell on deaf ears, and Davinder Singh became a celebrated officer. The BJP ran a virulent campaign with the slogan, “Desh abhi sharminda hain, Afzal Guru zinda hai!” (The nation is ashamed because Afzal is still alive). And the Congress, in a desperate rush to placate ‘public opinion’ secretly hanged Afzal, denying him even his last rights. In January 2020, seven years after Afzal’s death, Davinder Singh has been been arrested for collaborating with other senior militants, and is himself being accused as a militant! Who will now question him about the Parliament case? Who will seek the answers Afzal pleaded for us to find? Who is invested in the truth?

Each of us should be. Because in committing both Afzal and the convicts of December 2012 to death, the the Supreme Court has relied on something quite outside the lawbooks and the world of evidence and procedure. It evoked the “collective conscience” — the shared beliefs, ideas, and attitudes that give us the sense of identity and bring us together as a community, a society, a nation. Our rage at the broken criminal justice system is being mis/used by the courts, the press, social and political powers, and the state, to derail the course of justice and take lives. Together they are the new khaap panchayats that hang those who transgress caste-community taboos, order rape as ‘revenge’, and ostracise and victimise the weakest. And if we stay silent, we are nothing more than colluders.

Let us return to the case on our minds. The violence of the December 2012 case isn’t as much of a ‘rarest of the rare’ case of violence as it’s made out to be. Think of the gangrape, stripping, mutilation and murder of women from Dalit, Bahujan, Adivasi, nomadic and minority communities, trans and gender non-conforming persons, or women in conflict zones that we hear of in the odd newsflash. But time for some honest introspection: Do the sexual assaults and/or killings at Khairlanji 2006, or Bhagana 2014, or Kunan Poshpora 1991, or Imphal 2004, or Gujarat 2002, or even Kathua 2018 evoke as sharp a memory as Delhi 2012? Do they evoke a similar rage? Do they awaken us as a people? Why is it that we ourselves want certain convicts put to death and not others? How different are our own responses to crimes committed by upper caste men, men in the armed forces, men with political connections, positions of power, and of course, men from our class, family, and social networks?

Data from all over the world repeatedly establishes that death penalty is not a deterrent to crimes*. Yet we are trying to believe that sexual crimes will stop after the executions of these four men. That’s nothing short of amazing. Especially when you consider that the hangings of Auto (Gowri) Shankar in 1995, Ranga and Billa (Kuljeet Singh and Jasbir Singh) in 1982, and Dhananjay Chatterjee in 2004 failed to make women safe in India. In the face of every such contradiction, the trope of ‘capital punishment’ becomes more powerful than ever, making any punishment less than that, a compromise — be it for sexual assault, cow slaughter, crimes against the nations. It seems nothing less than blood will do. In such an environment it’s hardly surprising that the Supreme Court has itself admitted that in at least 13 cases, the death sentence has been wrongly awarded and affirmed.

When the French sociologist David Émile Durkheim articulated the concept of the ‘collective conscience’, he made it a point to say he wasn’t defining it as a shared moral conscience between people. But maybe it’s time that we did. Especially in the case of a punishment as final and irretractable as the death penalty. For as Ela Gandhi, eminent peace activist from South Africa and granddaughter of Mahatma Gandhi has said poignantly, “Something dies in each of us when we sanction and call for such cruel acts, as the death of another human being, and when we through our governments, execute people.

About the author: Vani Subramanian's work in film explores the connections between everyday practices and larger political questions. Her documentary The Death of Us examines a range of cases in which the death penalty was pronounced, ending in execution, commutation to life sentence, acquittal or even pardon.

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*In America, where the use of the death penalty varies between states, homicide rates of states with the death penalty are 48-100 percent higher compared to states without it. Studies in Canada have illustrated that homicide rates remained significantly lower after abolition of the death penalty. And a 2018 multi-country study across 11 nations which have abolished capital punishment also affirms the same.

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