Sexual Violence and the Death Penalty

image_pdfimage_print

The judgment in the 16 December Delhi rape case
imposed the death penalty based upon the depravity of the offence and
the demands of the “collective conscience of society”. On the other
hand, in the Naroda Patiya judgment in the case of the rapes and murders
of Muslims in this part of Gujarat, the court held that it cannot go
down the route of giving the death penalty but preferred a graded system
of life imprisonment based upon the degree of culpability of the
different offenders. The latter is a new way of thinking about the logic
of punishment. Justice Jyotsna Yagnik rejects the retributive logic and
forces us to explore deeper questions about unthinkable violence,
responsibility and punishment.
Arvind Narrain (arvind@altlawforum.org) is a lawyer with the Alternative Law Forum.

Impunity has been the order of the day when it comes to violent
crimes against women in India. While cruelty enacted on the bodies of
women is quotidian in its nature, what is exceptional is when this
violence is brought before the court and the court recognises this
violence and accounts for it. The judiciary has failed in numerous cases
to ensure that those responsible for horrific crimes against women are
brought to account. Emblematic of this deep and tragic failure is the
Mathura rape case where the Supreme Court (SC) refused to even
acknowledge the sexual violence inflicted on women’s bodies.
In the light of this history, the judgment in the Delhi rape (which
occurred on 16 December 2012) case was exceptional in counteracting this
impunity for crimes against women by finding the accused guilty.1
How rare this conviction is emerges from the fact that the judge in the
case, justice Yogesh Khanna, had only two conviction orders in the 203
cases of rape he had heard from 1 January 2009 to the day of the Delhi
judgment.2
However, even as we acknowledge the importance of breaking the cycle
of impunity for violent crimes against women, there remain troubling
questions about how we punish the accused. Should the turn away from
impunity mean that we embrace the death penalty for the accused? Are
there ways in which we can acknowledge the gravity of the violation and
think of a graded and nuanced punishment which takes seriously the
violation without embracing the death penalty?
To think about the issue of punishment in the context of unimaginable
violence this article will trace out the very important but relatively
little studied judgment (compared to the Delhi rape judgment) delivered
by justice Jyotsna Yagnik in a case involving the murder of 96 Muslims
and the rape of Muslim women during the Gujarat pogrom. The judge in
this case finally comes to the conclusion that for this crime of mass
murder and rape, the 32 accused should be given different gradations of
punishment ranging from imprisonment for 14 years to imprisonment for
life. Is there something one can learn from the judgment in the Naroda
Patiya case (as it is familiarly known) when it comes to thinking about
the issue of both crime and its punishment?
Naroda Patiya Case
On 28 February 2002, following the Godhra train incident, in the
locality of Naroda Patiya, a violent mob systematically went about the
task of murdering and maiming Muslims, raping Muslim women and
destroying Muslim places of worship and Muslim houses. The orgy of
violence which went on throughout the day was accomplished using deadly
weapons and to the accompaniment of slogans which can be roughly
translated into meaning “slaughter, cut, not a single miya should be
able to survive, Jay Shri Ram”. The destruction concluded with the
burning of members of the Muslim community (the living as well as the
dead bodies were set aflame).
In the case finally before justice Yagnik (State of Gujarat vs Naresh Agarsinh Chara and Others),3
what was on trial were the series of incidents over the course of the
day which resulted in the death of 96 Muslims, serious injuries to over
124 Muslims and the rape of Muslim women. What was also on trial was the
criminal responsibility of Mayaben Kodnani and others for the
conspiracy to commit the said offences. During the course of the trial
327 witnesses were examined and 2,392 documents were produced. The
charge sheet listed offences ranging from conspiracy, murder, gang rape
and causing grievous hurt to forming of unlawful assembly. The entire
process of accessing justice right from filing the first information
report (FIR) to ensuring a fair trial was an uphill struggle. In fact it
was only the intervention of the SC which resulted in a relatively fair
investigation. Because of all these difficulties the struggle of the
victims of Naroda Patiya continued for 10 long years. It was only in
August 2012 that a 1,969 page judgment was delivered by justice Yagnik
convicting 32 people for the above mentioned offences.
The Judge’s Reasoning
Overcoming Procedural Hurdles: The substratum of the order’s
reasoning is a keen awareness that this is an extraordinary case. The
case had been sent back for fresh investigation by none other than the
SC and the facts of the case had to do with an extraordinary breakdown
of law and order. Considering this scenario the judge was inclined to
look differently at procedural issues which can often stymie the
struggle for justice.
First, with respect to the fact that investigation itself was faulty,
the judge asserted the principle that “defective investigation, that
too a deliberate defective investigation or deliberately kept loopholes
are no ground for acquittal”. The judge constructed a mental picture of
the days of the massacre and was able to empathise emotionally with the
situation on 28 February 2002. The judge observed

the picture was so gloomy and sad that the complaints of the Muslims
were not taken…It seems that the entire negligence, lighter attitude,
carelessness in the investigation, insensitive attitude towards victims
and their agonies etc. all was surely aimed at to see to it that at the
end of the entire investigation if not all statements, then at least of
majority witnesses should be saying that, ‘they do not know any member
of the mob’.

Second, the crime was difficult to prove as there was no corpus
delicti, i e, no body was recovered. This flows from the fact that
integral to the crimes committed at Naroda Patiya was the throwing of
persons (both dead and alive into the flames). As one eyewitness
observed, “four women of the society came there who were giving kerosene
to the men of the mob and those women were telling that ‘kill these
people and then burn them’”. Taking this problem, which is often
integral to the nature of mass crimes into account justice Yagnik by
drawing on case law found that, “recovery of dead body is not necessary
and it is held that conviction for murder does not necessarily depend
upon Corpus Delicti being found”.
Third, justice Yagnik is also not inclined to give the benefit of the
doubt to the accused though none of the deadly weapons used during the
carnage were recovered by the police. As she succinctly put it, “The
evidence shows that most of the accused were armed with a deadly weapon
and are guilty of rioting being armed with a deadly weapon. The weapon
is not actually recovered from them, but it is immaterial in the
circumstances.”
Eyewitness Accounts as Basis of Conviction: The evidence which
forms the heart of the judgment and is the basis of the convictions is
really the eyewitness accounts. The eyewitnesses in this case have all
suffered grievous loss with some of them actually seeing their family
members being killed. The demeanour of eyewitnesses who have suffered so
much trauma is observed by the court. It notes that

during the deposition many of the witnesses were finding it very
difficult to control (rolling down) their tears (on their cheeks). They
were eager to show their burnt limbs, their injured limbs and explain
their losses to the Court. Many of the parent witnesses were unable to
describe about the death of their children in the riot, they became so
emotional that very often needed to be consoled and offered a glass of
water to complete their deposition.

In the absence of almost all other forms of forensic evidence,
recovery of weapons, etc, it is the eyewitness testimony and the
reliance placed upon it by the judge, which forms the basis of the
Naroda Patiya convictions.4 This judgment at its heart is
really about the courageous testimonies of witnesses who persisted in
their quest for justice despite overwhelming odds. The witnesses went
ahead and testified to the almost unbearable loss they had suffered
despite continuing intimidation. A particular example of this form of
courageous truth telling is the testimony of prosecution witness (PW)
158 an extract of which is given below:

Here several people were cut and killed like entire family of
Kudratbibi, Jadi khala, her two daughters-in-law, family of the PW,
family of Kausharbanu, the family of maternal aunt of Kausharbanu,
brother-in-law Salam of Gauri Appa, etc. At this time, his wife Zarina,
daughter Fauzia, cousin Abdul Aziz, Haroon, Yunus, wife of Yunus jumped
the wall, they were cordoned by the people, his wife was dragged by four
men, she was attacked, her left hand was cut off by sword, her right
hand was attacked by sword, her head was injured by sword, she was given
hockey blow in her leg, her clothes were being pulled and torn off, not
a single cloth remained on her body, she was made naked…
Even at the water tank, there was screaming of ‘kill-cut’, all the men
of the mob have attacked different persons with the weapons in their
hands, four women of the society came there who were giving kerosene to
the men of the mob and those women were telling that ‘kill these people
and then burn them’, he knew the four women since they were purchasing
bakery products which he used to sell. Even he was also battered by acid
bottles on his right hand, flesh came out from his right hand, he was
also injured, he had also sustained injury on his hand, hip and head,
the clamours of only ‘save, save and save’ were heard, the mob has
killed his mother Abedabibi, sister Saidabanu, daughter of sister Saida –
Gulnaaz, Jadi Khala, Kudratbibi, their family members by pouring
kerosene and burning them…
They learnt about survivals of their relatives and met each other…
The witness felt that their house, their world were all ruined, he
added that ‘even today I get knee jerks and I am shaken, upon
remembering, I feel I am very upset and will undergo brain haemorrhage
on remembering the occurrence of that day.’
His wife told him about the occurrence with her, they were so helpless
that they had to shut their mouths, they were giving statement but, were
not knowing as to what they were saying and what they were missing, the
PW could not identify the four who dragged his wife…

The testimony speaks to a collective dimension of violence involving
an orgy of murder and rape. The chilling aspect of the testimony emerges
from the number of defenceless people who the witness testifies to
having been killed. The violence is sexualised with the clothes of the
women being pulled off thus leaving them naked. The deeply personal and
humiliating sexual nature of the violence is hinted at with the witness
saying that his “wife told him about the occurrence with her, they were
so helpless that they had to shut their mouths”. The consequences of
this almost overwhelming violence are literally world shattering as the
witness notes that on remembering, “I feel I am very upset and will
undergo brain haemorrhage on remembering the occurrence of that day”. It
is on understanding the various dimensions of the violence as well as
the impact on the victims that their incredible courage shines through
again and again.
The Honesty of Extrajudicial Confession: The sting operation conducted by Ashish Ketan of Tehelka resulted in videographed interviews with three of the accused in the Naroda Patiya case.5
All three interviews were treated as extrajudicial confessions under
Section 24 of the Indian Evidence Act. The extrajudicial confessions
were the other piece of evidence implicating both those making the
confession as well as the other accused in the crimes committed at
Naroda Patiya. They were cited in the judgment and need to be quoted in
part as they throw light on numerous aspects of the crime.
The gist of the confession of Babu Bajrangi:

I shall not stop working for Hinduism until I die. I have personal
notions about Hinduism. I have no fear even if I am hanged. Now, there
won’t live any Muslims in India. The moment I saw corpses lying in
Godhra, that very night I had decided and challenged that, ‘There would
be four times more slaughter in PATIYA than that of GODHRA.’..I have two
enemies, the Muslims and the Christians…
We slaughtered Muslims, Patiya is half kilometer away from my house. I
and the local public were there to do the massacre at Patiya. If one
would go to Godhra, one would be provoked and would determine to kill
all the Muslims then and there. We retaliated at Patiya. In Patiya, we
had secured the highest death toll.

The gist of the confession by one Suresh was:

If fruits (saying for girls) were lying, the hungry would eat it. In
any case, she (the Muslim girl) was to be burnt hence somebody might
have ate (eaten) the fruit.
Two to 4 rapes or may be more, might have been committed. Who would not
eat fruit? In whatever number Muslims are killed, it is still less. I
would not leave them. I have too much of rancor (malice) against them
(Muslims). Even I had also raped one girl, who was daughter of a scrap
man (one who is in business of scrap) – named Nasimo, she was fat. I
raped her on roof and then thrown (threw) her from there. I smashed her,
cut her to pieces like ‘achar’ (pickle).

These extrajudicial confessions describe in great detail what exactly
the accused did that day. More importantly, they give us a direct
insight into the minds of the accused. If there were doubts as to
whether the rapes took place that day, it is set at rest by Suresh’s
casual description of the act of rape and murder of a Muslim woman. Both
confessions give chilling evidence of the deep motive underlying the
killings. It is the hatred of the Muslim community which is at the root
of the orgy of violence against them. The confessions give us a hint
that the crime is not one which can be contained within ordinary
criminal law as the intent is not only to murder or rape as the Indian
Penal Code (IPC) describes it but rather the intention to eliminate the
hated race, the Muslims. The crime executed by the mob is nothing less
than what is referred to as the “crime of crimes”, i e, genocide.

Conspiracy to Commit Murder, Rioting, Unlawful Assembly, Inflict Grievous Hurt: In
a large mob it would be close to impossible to prove the individual
culpability of each of its members for every one of the offences
committed. What serves to connect the various actions of the mob to one
another legally is the law on conspiracy which requires proof that the
various members of the mob had a prior agreement to do a series of
illegal acts. If there is such a prior agreement then the various
members of the mob are responsible for all the actions undertaken by
anyone who is a part of the mob. The judge finds that there was indeed
an agreement among the members of the mob. The finding is that

the accused were tremendously over charged with the idea to take
revenge with the Muslim Community as a whole and they were totally out
and had clear objects in their minds of doing away with maximum Muslims
and to destroy, damage and demolish their religious place and property.

Rape in the Context of Mass Violence: The problem justice
Yagnik faced regarding the offence of rape was that there was very
little evidence left. The chilling extrajudicial confession of Suresh
wherein he brags about having raped a woman called Nasimo and then
cutting her into pieces provided an insight into the methods of the
killers. The methodology was clearly rape followed by murder and
burning. Hence, there was very little surviving evidence of the original
crime. The only place where the evidence of the crime survived was in
the memory of the perpetrators as well as that of the victim survivors.
The undoing of impunity for rape was really the fact that Suresh felt
impelled to boast about “raping Nasimo”.6 It is this extrajudicial confession which the judge uses to convict him of the crime.
Further, the history of mass crimes of the nature of that were
perpetrated at Naroda Patiya is closely tied to sexual crimes. In fact
mass crimes and sexual violence go hand in hand and we owe a debt of
gratitude to justice Yagnik for making that connection clear through the
appreciation of evidence. However nobody else was convicted of rape as
she did not see the conspiracy hatched on 28 February 2002 as including
the commission of the crime of rape. This is mystifying, particularly
since she has very clearly delineated the acts of rape committed in the
course of the murderous assault and quite clearly rape emerges as an
integral part of the conspiracy both from the eyewitness testimonies as
well as from the extrajudicial confessions.
However justice Yagnik was very clear that the crime of rape was
committed. The eyewitness testimonies combined with the extrajudicial
confession are sufficient to arrive at the conclusion. She understood
the reason the victims wanted to testify about a crime in which the
perpetrator was unknown. Zarina testifies to being “attacked by four men
and that she was gang raped there. She testifies that four men had
attacked on her with the help of sword, string of her petticoat was cut
off and that a severe sword blow was given on her hand by the attackers.
Having nakeded her, she was gang raped.” However Zarina was unable to
identify the attackers. The judge concluded:

When PW-205 is not implicating any of the accused, it is clear that she
does not have any other intention in her mind for narration of this
incident, except ventilation of tremendous violation of her human right
and constitutional right before the Court. The loud cries of such victim
of crime if not heard by the system, it is mockery of justice. Here, it
sounds quite fitting to record the deep concern of the Court about
violation of human rights and constitutional rights of the victim who
was subjected to gang rape.

In giving a dignified hearing to Zarina’s tale of horror and woe she
understood a very deep aspect about justice. It is very important that
the victims be heard and be believed. The pain of those who have
suffered unbearable loss needs to be acknowledged. This acknowledgement
of pain and loss can itself begin the process of healing.
The judge went on to order compensation for Zarina in full
recognition that “no compensation in fact, is weighty enough to wipe out
the permanent scar, effect and impact on the mind of the victim of the
crime of gang rape”. Rather the compensation is a recognition that, “the
Court is concerned with the commission of crime primarily since that is
to take care of subsistence of Rule of Law. The international concern
for the impact of sexual offences against women guide this Court that
this victim needs to be compensated.”
The Judgment: Bringing a Sense of Closure? The brutality of
the crimes can be deduced from the intentional killing, maiming, raping
and then burning the victims. If the “iron rod” emerged as a symbol of
brutality in the Delhi rape judgment, the phrase repeated by justice
Yagnik, “grilled meat” to refer to the ruthless burning of Muslims both
dead and alive symbolises the horror of Naroda Patiya. The other image
which dominates and in fact emerged as the emblematic horror story of
the Gujarat pogrom was the ripping apart of the stomach of the pregnant
Kausar Bano by Babu Bajrangi.
Justice Yagnik was able to acknowledge the horror suffered by the
residents of Naroda Patiya. She understood that the reason that even
after 10 years the victims in spite of all odds were still pursuing the
claim to justice was related to a deep-rooted need to right the balance.
The wrong which was done had to be righted, before one could even
attempt the process of closure. Justice Yagnik demonstrates a
sensitivity in understanding the context of communal violence when she
says, The Court is not sitting in (an) Ivory Tower.” It is this
appreciation of the context of a communal mass crime which ensures that
defective and complicit investigation is not allowed to checkmate the
quest for justice.
Even when there is no possibility for conviction she understood that
victims needed to be heard. The process of empathetic hearing itself7 combined with the judgment brought about some measure of closure to a horrific chapter in Indian history.
What is apparent is also that the evidence before her far outstrips
the narrow limits of the crimes defined in the IPC. The offences
committed on that day were not only acts of murder and rape committed
against individuals persons. In its deepest sense they were crimes
committed with the avowed intent to eliminate in whole or in part the
Muslim community in Naroda Patiya. As such the crime was really what is
referred to as the “crime of crimes”, i e, genocide, a crime against a
collectivity which is not recognised by Indian law.
Delhi Judgment and the Naroda Patiya One
The horrors of the Delhi 2012 and Gujarat 2002 are of two different
orders. Yet there is no gainsaying that they both portray chilling and
brutal violence inflicted with impunity upon the bodies of women. The
question is, how did the court deal with the reality of extreme and
outrageous acts when it comes to the question of awarding punishment?
The sentencing part of the judgment in the Delhi rape case gives the
extreme penalty of death to all the five accused. The logic the judge
adopts is that the extreme depravity of the offence brings it within the
Bachan Singh formula of the rarest of the rare, and hence makes it a
fit case for the award of the death penalty.8 The aggravating
circumstances of this “brutal, grotesque, diabolical, [and] revolting”
crime far outweigh the mitigating circumstances of “youth,
socio-economic circumstances clean antecedents and reformative
approach”.
Justice Khanna also articulates the need for awarding the highest penalty in terms of both deterrence and retribution:

These are the times when gruesome crimes against women have become
rampant and courts cannot turn a blind eye to the need to send a strong
deterrent message to the perpetrators of such crimes…
The subjecting of the prosecutrix to inhuman acts of torture before her
death has not only shocked the collective conscience but calls for the
withdrawal of the protective arm of the community around the
convicts….Accordingly, the convicts be hanged by neck till they are
dead.

In the sentencing part of the Naroda Patiya judgment the judge sees
with immense clarity the harm that the accused have inflicted.

The 96 persons were killed mercilessly in a day and were reduced to
grilled meat without any stimuli or provocation on their part. Among the
deceased victims, there were women, old persons, helpless kids and even
crippled person. About 125 victims have been found to have been victims
of crime of hurt, grievous hurt, attempt to murder, etc. Among these
helpless 125 persons there was even an infant aged 20 days.

The proved facts of murder and rape committed on the grounds of
religion go beyond any ordinary crime of murder and rape. As justice
Yagnik puts it:

In a country like ours, discrimination on the ground of religion or
enmity or hatred for any religion is a taboo. Taking lives of persons
just because those persons are having faith in another religion is bound
to be dangerous and it strikes at the very root of the orderly secular
society which the founding fathers of our Constitution dreamt of.

Then she goes on to dismiss the question of extenuating circumstances
raised by the accused including family responsibilities, young age and
lack of criminal antecedents. The judge observes,

Their submission for their family responsibilities, small kids, health
of their spouse, they being the only breadwinner, etc, cannot be
considered in absence of accessing their role based on the proved facts
of the case. How it can out of the mind that the loud cries of the
victims for the help and mercy if have not appealed to the heart, mind
and soul of the accused, then, it itself is an important consideration.
The proved fact reveals of throwing children in the flames of fire was
the most shocking part….

The judge discusses the punishment of death penalty making two
contradictory points, that the death penalty “serves the purpose of
deterrence” and that death penalty “undermines human dignity”. The judge
then concludes that,

In the facts of the case, when alternative to death penalty is
available, it is better to embrace the same. There are ways to address
this violent crime in a more constructive way in which precious lives
were lost in a barbarous attack launched by the assailants.

Based upon this understanding she awards a graded punishment wherein
Babu Bajrangi is given imprisonment for the rest of his natural life,
Maya Kodnani is given imprisonment for 18 years, seven other accused are
given a minimum sentence of 21 years and 22 other accused are given
life imprisonment.
Rethinking Punishment?
The sentencing part of the Delhi rape judgment imposed the death
penalty based upon the depravity of the offence and the demands of the
so-called “collective conscience of society”. The sentencing part of the
Naroda Patiya judgment did not minimise the offences committed and in
fact found that in offences so serious there were no extenuating
circumstances. Yet the court held that it cannot go down the route of
giving death penalty but preferred a graded system of life imprisonment
based upon the degree of culpability of the different offenders. The
logic of the court was “there are ways to address this violent crime in a
more constructive way in which precious lives were lost in a barbarous
attack launched by the assailants”.
This call by justice Yagnik gestures towards a new way of thinking
about the logic of punishment. She rejects the retributive logic
implicit in the argument about the “collective conscience of society”
and forces us to explore deeper questions about unthinkable violence,
responsibility and punishment.
The call to address, “violent crime in a more constructive way” is
most compelling in the context of the public outrage and response to the
Delhi rape incident. While there was anger on the streets, there seemed
to be very little space for mourning. Would a politics centred on a
collective mourning have changed the way we responded to the Delhi rape
incident? Could there have been a shift from the angry insistence on the
death penalty, if we had collectively spent more time on grieving for
the life that had been lost?
When the judgment was delivered what was on display was the idea of
punishment as a festival. The call of death for the rapists was a cry
for revenge and when it was answered by the judgment there almost seemed
to be a sense that the sentiment of the people was sated.
The question of how the public sentiment in favour of revenge can
pervert the idea of justice is raised most compellingly by Hannah
Arendt. In her analysis of the trial of Eichmann, Arendt is alone in her
discomfort with the staged production of Eichmann as a symbol of
radical evil. In her understanding he was at most a cog in the wheel of
the bureaucracy of death that was the Nazi apparatus. She also expresses
strong discomfort with a show trial, in which the collective conscience
of the Jewish people has to be appeased, regardless of what a true
notion of justice may demand. “Justice [according to Arendt] demands
seclusion and it permits sorrow rather than anger”.9

It is sorrow which is conspicuously absent in the Delhi rape judgment
and which permeates the Naroda Patiya judgment. Arguably it is the
judge who is moved by the pain of the victim who is able to craft the
idea that we need to respond in a “more constructive way” to
“violent crime”. The judge, who expresses shock and horror only, goes
along with a sentiment based upon revenge for the horrors inflicted as
is the case of the Delhi rape judgment. The judge who is moved by sorrow
is unable to view the perpetrators as “subhuman” in spite of the
horrors they have perpetrated whereas the judge who is moved by the
public sentiment of anger very quickly ends up viewing the perpetrators
solely within the lens of the “less than human”.
The relationship of emotion and feeling to the process of judging and
what accounts for justice is an important question. Surely justice must
not only be a balm for past wounds but equally a gesture towards the
future? The aim of justice cannot be to put to death a group of
perpetrators while allowing the sentiment of evil which led to the wrong
to continue unchallenged?
By questioning the logic of death penalty, the objective is not to
minimise the hurt and harm suffered by the victim of the 16 December
rape. In fact the violent attacks on her should deepen our sensitivity
to human suffering and broaden our ethical horizons. It should sensitise
us to the equally brutal suffering of Soni Sori and the innumerable
dalit and adivasi women who suffer such brutalities.
The idea of justice should take individual suffering seriously but
equally justice should be future oriented and must make a moral
commitment that what happened to one individual should not happen to
anyone else similarly placed.

Please follow and like us: