Ghosts of past hover over gender justice

Byline for February 10, 2013

Ghosts of past hover over gender justice

M.J. Akbar

A Supreme Court judgement may be anchored in law, but it sails a long way through the mind of judges before it becomes a public pronouncement. Law and justice are both human and therefore prone to frailty and error. But we respect the Supreme Court as the final authority because we trust its integrity enough to believe that even the occasional mistake is an honest one.

One means through which the legal system protects its credibility is the doctrine of “contempt of court”. Dissent is not recommended, at least if you want to stay at home rather than in a cell. But surely their Lordships will permit some space for perplexity? There must be an ante room for discussion, particularly since a Supreme Court judgement is much more than the final word on the fate of an individual criminal. It is also the template by which all courts in the nation will shape their decisions in millions of cases in process of judgement, or in crimes of the future.

On 5 February newspapers reported that a bench of Justices P. Sathasivam and J.S. Khekar confirmed the death penalty on an adult who had kidnapped a seven-year-old boy and then killed him after failing to obtain ransom. The justices concluded that they saw no hope of reform in the criminal, that his perversion was inhuman, and the murder was cold and premeditated. All of this is absolutely true; the rationale for their decision to confirm the dealt penalty is inarguable.

But there was a curious codicil in the justification, which their Lordships noted as aggravating circumstances. I quote: “The parents of the deceased had four children, three daughters and one son... Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child has grave repercussions for the parents of the deceased...” The bench continued, “Agony for parents for the loss of their male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable.”

The implications of such thinking are astonishing. It implies clearly that the parents’ agony would have been less if one of the three daughters had been similarly kidnapped and murdered, for the girl would not continue family lineage or provide for her parents in old age. The judges stressed “sole male child” factor as bearer of “the family lineage” and sustenance provider.

Which world are the judges living in?

We know the world they inhabit from another judgement, delivered just a week before, also involving an appeal against a death penalty. Justice Sathasivam was again on the bench, this time in the company of Justice F.M.I. Kalifulla. It is difficult to repeat their decision without a sense of horror at the double standards that the Supreme Court has applied. Before them was a man convicted by both the trial and high court. This savage murderer had raped his minor daughter, and been arrested after his wife complained to the police. When released on parole, he axed both his wife and daughter to death.

This abominable, barbaric rapist and killer lives, thanks to their Lordships Sathasivam and Kalifulla.

One wonders: has the great ferment rising across India against rape and gender prejudice escaped the attention of the Supreme Court? Chief Justice Altamas Kabir has certainly heard the howl of anguish from women. He said that if it were possible he could have joined the protests in Delhi. Was the Chief Justice helpless while his brothers delivered such discordant pronouncements? What will trial courts and high courts do in future when a father who has raped and killed his minor daughter, and has axed his wife for being a mother, appears before them? Will they stop long short of a death sentence the next time, because of the precedent sent by Justices Sathasivam and Kalifulla? Is the life of a raped and murdered minor girl less than equal to the life of a kidnapped and murdered boy? Does a man who killed two women deserve clemency, while the man who killed one boy gets hanged?

Is this justice?

The Honourable Supreme Court has the option of silence. We cannot push our questions beyond a limited point. Is silence the only answer that the court will choose?

If the Supreme Court, and Parliament, have the courage to do so they should abandon the death penalty. Then there will be no debate when governments delay the implementation of a death verdict on Afzal Guru for years, and finally act only when the President of India indicates that his patience is over. Our prisons can teem with rapists who have also killed minor daughters and wives. But as long as the law permits this ultimate weapon called the death sentence, that sword of justice must swing without conscious or unconscious prejudice.

Gender bias is dead. It is being buried in parts each day by modern India. Justice cannot be swayed by ghosts of a past age.