Poem | The Child Is Dead, the Nation Is Defiled 

A wail in the memory of the young rape and murder victim of Kathua.

This poem is a wail in the memory of the young rape and murder victim of Kathua. It was written in January 2018, when the ghastly incident took place. The poem’s poignancy and anger need a revisit after the perpetrators of the crime were convicted on Monday, June 10, 2019.

Stop all worship now – the child is dead
The incense, lamp, drum, the chowrie
Stop everything this moment – the child is dead
Those walking in and out, don’t, don’t strike the bell
Lock all the temples – the child is dead.
The nation is defiled*.

It was still a child, caught in the ripping canines
Of demons in masks of men, it’s dead indeed
Flower-like child, it’s crushed indeed
Lamp-like child, aiyoh!
Can’t you see? It’s extinguished.
It took horses to graze
Horses came back, but the child didn’t
The wait was long enough
The child’s time to eat, the child’s time to play
It’s time to laugh, time kept coming back, not the child
It’s dead. I know the foreboding smell of blood.

Aiyoh the child is dead! The nation is defiled.
Immeasurable grief is raging
Don’t you have any decency?
Don’t you get what’s being said
Stop your laughter, your celebrations
Stop your rhythmic chant, festivity of hymns
Stop your polls, politics, provocations
Where is he lying dead, the lord of lords?
The deaf deity, the blind master
Drag him out
Let him go back after he slashes and slays
Those who killed and those who kill
Till then shut the sanctum sanctorum
Until then none go in
None shall wash off the desecration
The nation is defiled. Silence is tiring
The sound of chatter is tiring
Just need the child’s life back.

Do you see air quivering, still land quaking?
Aren’t you able to hear again! A feeble voice?
Calling out ‘save me’
And again, who, from where, till when
Quietly snuffing out the child’s cry.

Oh, a nation ever desecrated, don’t you really get it?
A nation ever in disguise, a nation that’s lost its eyes
A nation that’s soon becoming a haven
Of eagles, vultures, of degenerates
Of street-side predators
Who never get women.
My Bharatamata – this is enough
Come, let’s go elsewhere, far away
But where do we really go!

* The original Kannada word used here is ‘sutaka’. It roughly means impure/defilement/desecration. It’s a cultural idea that is hard to capture in translation. It is used to indicate an impure phase of time after both birth and death among Hindus. To rid this impurity, one is expected to perform certain rituals.

Vaidehi is the pen name of renowned Kannada writer Janaki Srinivasa Murthy. She has published a number of volumes of short stories, essays, poetry and drama. She won the Sahitya Akademi Award for her collection of short stories, Krauncha Pakshigalu in 2009. Her short story Gulabi Talkies was made into a film, in 2008, by Girish Kasaravalli, and won the national award for best actress.

Translated from Kannada by Sugata Srinivasaraju

Kathua Rape and Murder Case: Six of Seven Accused Convicted

Three of the convicts were sentenced to life imprisonment while the rest were sentenced to five years in prison.

New Delhi: A special court ruled today on the brutal gangrape and murder of an eight-year-old girl in Jammu and Kashmir’s Kathua last year. Six of the seven accused were convicted and one was acquitted.

The three main accused were sentenced to life imprisonment, while the rest were sentenced to five years in prison.

The convicts include Sanji Ram, his nephew and one of his friends, and three police personnel. The police personnel were accused of taking money to destroy evidence. Another one of Sanji Ram’s juvenile nephews was not included in this trial.

Sanji Ram, the caretaker of the temple where the crime took place, Special Police Officer Deepak Khajuria and Parvesh Kumar, a civilian, have been convicted under Ranbir Penal Code sections pertaining to criminal conspiracy, murder, kidnapping, gangrape, destruction of evidence, drugging the victim and common intention, the lawyers said.

They have been sentenced to life imprisonment and fined Rs 1 lakh each for murder along with 25 years in jail for gangrape.

Three accomplices – sub inspector Anand Dutta, head constable Tilak Raj and special police officer Surender Verma – have been sentenced to five years in prison.

The acquitted person was prime accused Sanji Ram’s son Vishal. The trial judge accepted Vishal’s alibi that he was taking an exam in Muzaffarnagar on the date of the incident.

The case became controversial and difficult to investigate as Bharatiya Janata Party leaders participated in rallies organised by Hindu Ekta Manch in support of the accused. Lawyers bodies also protested the investigation into the case. The lawyer for the victim’s family received death threats.

The eight-year-old girl was kidnapped on January 10 last year and raped inside a village temple in Kathua district. She was from the Bakharwal nomadic community. The investigation showed that she was kept sedated while kidnapped, raped then bludgeoned to death.

The convicts have the option of appealing their sentence and punishment at higher courts.

There is also a juvenile accused in the case, who cannot be named by law and is subjected to a different process of trial and punishment. The trial in his case has not begun as there is a dispute regarding his actual age.

Also read: Bar Council Ignored Proof to Say Lawyers Didn’t Obstruct Kathua Chargesheet

The mother of the eight-year-old has been telling the media that she wants the death penalty for the convicts. “We want justice. We want them to hang,” she reportedly told India Today.

The horrific nature of the case triggered major outcry from the public and in the media.

Owing to the sensitivity of the case, and the resistance put up by lawyers to prevent the police from filing chargesheets, the Supreme Court ordered that the case be shifted out of the state of Jammu and Kashmir and finally a special court was set up in Pathankot, where an in-camera trial (closed to the public and media) was conducted.

Over 1,000 security personnel have reportedly been deployed at various points in the state, in case of an agitation following this verdict.

(With inputs from PTI)

With the Abolition of the Death Penalty Still Elusive, SC Aims at Procedural Reform

While hearing fresh criminal appeals from death row convicts, the Supreme Court is increasingly adopting the approach of ‘special sentencing’, wherein death penalty is commuted to life sentence without remission. 

New Delhi: The abolition of the death penalty, with public opinion steadfastly hostile to it, isn’t likely to be an easy objective to be achieved in India in the near future. 

Yet there are many baby steps which the judiciary can take to reform procedures involved in the confirmation of death sentences of convicts that could eventually help erase the biases and prejudices against the abolition of capital punishment in India. 

One such reform was achieved last Monday, November 12, by the Supreme Court bench of Justices Kurian Joseph, A.M. Khanwilkar and D.Y. Chandrachud. This was a case where the special leave petition against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006.

In limine dismissal of a petition means that the bench, at the threshold stage itself, does not want to hear the petitioner as it has made up its mind even before the hearing even starts. The bench does not give any justification for such a decision. 

That the Supreme Court has a few times in the past dismissed appeals from death row petitioners in limine must indeed be a cause for concern. That the current judges are inclined to reopen such cases for a fresh hearing is a hope for reform.

In June 2017, a two judge bench comprising Justice Chandrachud and Justice Sanjay Kishan Kaul, while hearing a petition by three convicts challenging summary dismissal of appeals from death row convicts, said that the issue raised by them is “very important and serious”, and needs to be examined. While this petition is pending for a detailed hearing, it appears the other benches have taken the cue and are reopening such cases on their own without waiting for formal guidelines to be framed for the purpose. 

Also read: India Votes Against UNGA Draft Resolution on Use of Death Penalty

According to one report, there have been at least nine cases since 2004 in which the Supreme Court has passed such orders, containing just three words, while dismissing the plea of convicts, and leaving them no grounds to challenge the order to seek remedy through review petitions. Surely, if there are just three words – “delay condoned. dismissed” – a convict cannot seek a review of the decision on the only permissible ground of “error apparent on the face of the record”.

In the instant case, Dnyaneshwar Suresh Borkar v The State of Maharashtra, the appeal of the death row convict against the Bombay high court’s confirmation of his death sentence [SLP (Crl) 3323 of 2006) was dismissed in limini on July 21, 2006 by a two judge bench comprising Justice B.P. Singh and Justice Altamas Kabir, with the following words: “Upon hearing counsel, the Court made the following ORDER: ‘The Special Leave Petition is dismissed’.” Subsequently, a review petition filed by the convict was also dismissed in circulation among the judges. 

On November 12, the three judge bench of the Supreme Court recorded this unfortunate decision of the two judge bench in 2006, and added: 

“We have heard Anand Grover, learned senior counsel appearing for the review petitioner/applicant and Nishant R. Katneshwarkar, learned counsel appearing for the state, who has graciously submitted that the State has no objection if the order of dismissal in limine is recalled, leave is granted in the special leave petition and the matter being heard on merits.” 

The bench thus recalled the 2006 decisions dismissing the convict’s appeal and the review petitions.   Although the current petition is an application for reopening of the review petition, the bench disposed of it by taking on board the convict’s original special leave petition for rehearing. 

Also read: The Death Penalty Ordinance Only Serves to Worsen India’s Extradition Problem

Taking note of the fact that the convict has been in custody for over 17 years, the bench directed the registry to post his appeal for hearing in the first week of February 2019, giving sufficient time for calling for the records from the high court/trial court, in connection with the conviction and sentencing of the convict.  The bench made it clear that the order on suspension of his death sentence will continue to operate till the disposal of the appeal.

In this case, the convict was found guilty of the of the offence of kidnapping and murder of a teenage boy.   While the Bombay high court confirmed his death sentence because it found no hope of his reformation, the Supreme Court bench, on October 31, directed the counsel for Maharashtra to get specific instruction from the jail authorities on the conduct of the convict in jail; whether he is involved in any other case; whether he has acquired any education in jail; his health condition, and medical records, if any; and any other relevant information. It is significant that the bench, on November 12, decided to hear his SLP afresh, after this feedback from the state government.

Slew of petitions from death row convicts on November 20

On Tuesday, November 20, a slew of similar appeals from death row convicts have been listed for hearing before four three-judge benches of the Supreme Court. In one such case on October 31, Ambadas Laxman Shinde and others versus State of Maharashtra, the same bench of three judges (Justices Kurian Joseph, Khanwilkar and Chandrachud) recalled an order passed by another bench in 2009, awarding death sentence to three accused, because the previous bench did not afford an opportunity to them to be heard before it accepted the appeals filed by the state government for enhancement of their sentences from life to death. 

The accused were deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the state for enhancement, the bench had reasoned. While doing so, the bench extended the relief to other three accused in the same case, whose death sentences had earlier been confirmed by the Bombay high court, and recalled the Supreme Court’s confirmation of their death sentences too, as the evidence is common and the offences related to the same incident, in which the six accused were found guilty.

Also read: Twelve Indian States Think the Death Penalty Shouldn’t Be Abolished

The Supreme Court is currently hearing a slew of petitions from death row convicts in conformity with the 2014 constitution bench judgment in Mohd. Arif case making it mandatory for three judge benches to hear review petitions from death row convicts in open court.

While hearing fresh criminal appeals from death row convicts, the Supreme Court is increasingly adopting the approach of ‘special sentencing’, wherein death penalty is commuted to life sentence without remission.  On November 15, another bench of the Supreme Court adopted special sentencing to save a convict from gallows, saying its reasoning will be given later. In such cases, the human rights defenders have expressed concern that death row convicts cannot be deprived of their right to remission, if their conduct in the jails suggests potential for reformation. 

J&K Crime Branch Files Supplementary Chargesheet in Kathua Case

The crime branch of Jammu and Kashmir police has filed an additional chargesheet in the rape and murder case of an eight year old girl from a minority community in Kathua.

Jammu/Pathankot: Jammu and Kashmir police’s crime branch filed a supplementary charge sheet in the rape and murder case of an eight-year-old girl from a minority nomadic community in Kathua before a court in Pathankot today, officials said.

Senior superintendent of Jammu and Kashmir police (crime branch) R.K. Jalla, accompanied by special public prosecutor J.K. Chopra and other lawyers, submitted the chargesheet before district and sessions judge Tejwinder Singh, the officials said.

The chargesheet includes a medical opinion about the effect of sedatives on the victim as well as the location of Vishal, son of Sanji Ram, alleged to be the mastermind behind the abduction and killing in January this year. Vishal had claimed he had never visited Kathua.

The crime branch has arrested Ram, his son Vishal and his juvenile nephew, two special police officers Deepak Khajuria alias ‘Dipu’ and Surender Verma and friend Parvesh Kumar alias Mannu. All of them were named in the first chargesheet on April 9.

It also arrested head constable Tilak Raj and sub-inspector Anand Dutta, who allegedly took Rs 4 lakh from Sanji Ram and destroyed crucial evidence. Raj and Dutta have since been dismissed from service.

The supplementary charge sheet has summed up the investigation, which alleges that Kumar was not only in constant touch with co-accused Khajuria but also in contact with Raj.

Raj is believed to have played a pivotal role in striking a deal between Ram and the police for destruction of evidence.

The chargesheet has also submitted Kumar’s detailed call analysis to show he shared a common location with other accused on crucial dates of crime and immediately thereafter.

The duration of the calls made and their frequency increased after the rape and murder of the eight-year-old girl, leading to the “irresistible conclusion of knee-deep involvement of accused Surinder Kumar with other accused…”, the charge sheet states.

The Crime Branch also conducted an analysis of the two bank accounts of Ram, custodian of the temple where the child was allegedly confined, and found he made huge cash withdrawals.

Witness statements recorded by the crime branch confirmed the accused had undertaken no constructional activity and had no social obligation either, the document says.

The crime branch alleged in its charge sheet that the withdrawals were made to bribe the police officers for destruction of evidence.

Earlier this month, the crime branch informed the Supreme Court that it would be submitting a supplementary charge sheet in the case. The apex court had given them eight weeks to file it.

The district and sessions court in Pathankot framed charges of rape and murder against the seven accused in the case on June 8.

Ram, considered the main accused, is alleged to have hatched the conspiracy with the other accused for kidnapping the girl as part of a strategy to remove the minority nomadic community from the area.

The fate of the eighth accused, a juvenile, is yet to be decided after the crime branch moved an application in the high court claiming he was an adult.

(PTI)

Don’t Forget the Kathua and Unnao Rapes Because #MeToo Starts at Home

Child abuse is more frequent and closer to us than we acknowledge. In fact, every other child in India has been sexually abused. So why don’t kids tell us about it?

This article is part of a bimonthly series that will address early child development.

Most Indian women hardly know where to begin when it comes to the #MeToo campaign. On the bus to school, on the road to the market, in the office, in the classroom and – most commonly – in their own homes, growing up female in India means sidestepping lecherous “uncles”, pretending not to hear ugly threats and artfully avoiding come-ons, invitations and slurs.

The tragic rape and torture of minor girls in Kathua and Unnao and the outcry from citizens around the country is an unsurprising outcome in a culture deeply divided against itself – India, on the one hand, glorifies and deifies women and girls, and on the other hand, controls, objectifies, rejects and abuses them. And the solution offered by the government – the death penalty for rape involving girls under age 12 – is a shallow political ploy which doesn’t address the true nature of such crimes.

This solution of the death penalty is unhelpful: For starters, according to a research paper, boys are actually more likely to be sexually abused than girls; second, death for rapists serves mainly to distract the rest of the population from the structural violence, systemic and everyday abuse which a hierarchical society perpetuates, and third, it does nothing to strengthen investigation and prosecution which need to happen first for any conviction to take place at all.

The Narendra Modi government is obviously pandering to public sentiment while avoiding the root causes of the problem, but what would a sensible approach look like? No problem so deeply rooted in a society can be undone with a single measure, but as with most human complexity, it helps to go back to child development.

How children are raised, what they are taught about bodily integrity, self-determination and managing their emotions determines the kind of society we all end up living in. Parents changing their babies’ nappies and feeding them dinner probably aren’t thinking about the long-term societal impact their actions are creating, but it’s true that the hand that rocks the cradle rules the world.

So, it’s worth looking at the messages we are giving our children when they are very young and how those messages may determine their behaviour as they get older.

Consider sleeping patterns. How many parents put their children to bed because they themselves are exhausted and need a break? How many of us force children to eat even when they insist that they aren’t hungry or they don’t like what’s being offered? How many kids are made to wear a sweater because ‘amma’ feels cold, or to stay indoors because ‘papa’ thinks it’s too hot to play outside? Or, what about the message we give children that their ideas and opinions not only don’t matter but are also morally wrong to even be voiced? “Jawab deti” (“She talks back to elders”) is a common and damning criticism in India, especially for girls, and it sets a lifelong pattern of submissiveness and inability to speak out.

I’m not advocating anarchy, or “Total Child Rule,” but it’s important to acknowledge what we are doing when we teach a child that we can handle her body better than she can, that someone else knows better than she does about what she wants or needs and that she has no right to voice her own feelings, let alone object if she doesn’t like something.

This is particularly true for girls, who have this message reinforced at every stage of their lives, but it applies to boys too and the groundwork is laid from infancy. Part of it is a conscious belief in the value of community, and the willingness to forego personal preferences for the good of the community. This is a significant feature of Indian culture and as a concept, there is nothing wrong with it.

A woman holds a placard as she participates in a protest against the rape of an eight-year-old girl in Kathua near Jammu, and a teenager in Unnao, Uttar Pradesh, in Mumbai, India, April 15, 2018. Credit: Reuters/Danish Siddiqui

A woman holds a placard as she participates in a protest against the rape of an eight-year-old girl in Kathua near Jammu, and a teenager in Unnao, Uttar Pradesh, in Mumbai, India, April 15, 2018. Credit: Reuters/Danish Siddiqui

But sometimes, it goes too far – If one has to sacrifice one’s own sense of integrity for the good of the group or the honour of the family, it’s both frightening and dangerous. The other part of the “keep silent” message, however, is even more worrying. It goes back to an ancient belief (Hammurabi’s Code enshrines it in Babylonian law but most cultures share this history) that the father of the family holds absolute, life and death power over his children as well as his wife or wives. With such a mindset, where even grown women have no agency or independence, a child hasn’t got a chance at asserting herself.

Being raised to sacrifice one’s individual identity for that of the group is hard. Being forced to submit to the tyrannical dictates of fathers is evil. But Hammurabi is long gone. We’ve moved past that, haven’t we?

Social conditioning

And yet, every other child in India is sexually abused at some point in her younger years. Almost all the abuse happens at the hands of a relative or family friend. We have to wonder what we are enabling by our silence and what we are demanding when we teach children not to speak. We have to ask ourselves why our kids don’t tell us when terrible things happen to them.

Could it be in part because of the instructions we give them as youngsters? We have trained them so carefully not to trust their own bodies and not to believe that what they feel and think is important. We have taught them – and we prove it over and over – that they have no right to speak up when something feels wrong and that if they do, no one will believe them anyway. We have taught them to defer to adults in all things without giving them the judgement or the permission to differentiate. Both by example and omission, we tell them not to say out loud what is happening in secret: this adult is hurting me; that one frightens me.

How many times do our children have to squirm away from that particular chacha or refuse to be alone with that uber-charming older cousin before we take them seriously? What do they have to do to make us defend them? It’s easy to focus on an atrocity like Kathua which, though horrendous and depraved, is actually among the rarest of the rare. It’s hard – and maybe impossible, judging by how infrequently it happens – to admit that the real problem is much more banal, frequent and close to us than Kathua.

The real problem of child sexual abuse is in fact located in our own homes, it lives there and it is preying on every second child. We would rather shout ourselves hoarse about the monster “out there” than confront the uncles, fathers, grandfathers and cousins who live right here in our families. Speaking up about something as earth-shattering as sexual abuse does not happen overnight. It takes practice. A child who has never been allowed to choose what she takes to school for lunch or asked her opinion about which movie the family is going to watch is unlikely to feel confident enough to say that neighbour uncle wants them to get naked and be photographed.

One step at a time.

So, we teach children to make choices about easy things. We give them practice in expressing their views on non-controversial issues such as whether the shoes we are buying them are comfortable or whether they’ve actually understood the homework assignment we’ve just explained. We ask them what they think about their school or their friends and we listen carefully to what they have to say. We let them practice expressing their thoughts and feelings. We don’t laugh at them and we don’t brush them aside.

Giving children the tools they need to stay safe does not put the onus on them to protect themselves. Not at all. That is, and always will be, our responsibility. When we teach children to raise their voices and speak their minds, we do so with a promise and a guarantee: We will listen to what you say. If action needs to be taken, we will take it. We will believe you.

Not a Martyr: Dim the Halo Around Rape

Romanticising the rape and murder of Nirbhaya, the eight-year-old in Kathua, and countless others, and making martyrs of them, is no better than victim-blaming or shaming. They were raped and killed. No halo is bright enough to hide that.

On April 24, the Indian Supreme Court said rape victims, whether dead or alive, have dignity and cannot be “named or shamed”. The court was ruling on whether the identity of rape victims should be disclosed, following the brutal rape and murder of an eight-year-old girl in Kathua in Jammu and Kashmir, that has roiled the country in the past few weeks. The victim, right from the beginning, had been identified in the media by her name. According to the Supreme Court, that is problematic.

“The dead also have dignity,” the ruling said.

It said that even in cases where rape victims were alive and were either minors or of unsound mind, their identities should stay hidden as they have the right to privacy and cannot live under such a “stigma” throughout their life.

Words like shame, dignity, stigma abound through the ruling that attempts to view rape and women’s response to it through the problematic lens of a woman’s dignity. Naming is not shaming. Not in abuse cases at least. Which is why we all participated in the #MeToo campaign, right?

Wrong! Because even as we all enthusiastically participated in the #MeToo campaign, we were still calling Jyoti Singh, the 23-year-old paramedic who was raped and killed in 2012, Nirbhaya. Not her name but a decorative epithet imposed on her in the days following her rape, when she lay in hospital fighting for her life.

This despite the fact that both her parents had revealed her name and urged the media to use it.

“My daughter’s name was Jyoti Singh and I am not ashamed to name her. Those who commit heinous crimes like rape, their heads should hang in shame, not the victims or their families. You should take her name too,” Singh’s mother had unequivocally told the media on the third anniversary of her daughter’s rape and murder that had shocked the world and arm twisted the Indian government to strengthen its women safety laws.

This was two years after Singh’s father had asserted the same. In January 2013, not even a month after the incident, Singh’s father had told the British media her name.

“We want the world to know her real name… My daughter didn’t do anything wrong, she died while protecting herself… I am proud of her. Revealing her name will give courage to other women who have survived these attacks. They will find strength from my daughter,” he had said.

Singh’s parents wanted her to be known by her name. For them, she was a flesh and blood human being. They felt her pain and struggle, while the rest of India romanticised her death and turned a heinous crime into a tale of heroism, because of course, it helped us cope better as a society.

So, we called her names like Jagruti, Damini, Amanat, Delhi Braveheart and India’s Daughter. It touched our emotions, it outraged us because we can only feel for a woman when we mould her into a relation – mother, daughter, sister – or into a overtly courageous avatar. More than 90 women are raped in India every day. But we need epithets to feel outraged. We need to characterise them on their levels of gruesomeness, to feel outraged.

Why do we insist on calling Jyoti Singh Nirbhaya? On that December night, I am sure she was feeling far from courageous. Her fear and helplessness can only be imagined. When she screamed and cried for help, courage was far from her mind. When she fought for her life in the hospital for days, it was not a choice.

We romanticised her plight well. And in that we made her a martyr, her predicament a tale of heroism. When we call Singh Nirbhaya, we are hailing her personal courage as if to redeem the horrific crime. But there is no redeeming rape. Whitewashing victims of rape stems from the social conditioning to hide the shame – coalesced with a woman’s honour in this part of the world – and is no better than victim-blaming or shaming.

When we call Singh, Nirbhaya, we are putting a halo around her suffering. We are deifying her and her “lost honour”. If the Indian Supreme Court manages to ban rape victims from being named, they are going to fuse forever the concept of rape and lost honour. It is going to institutionalise the response of women to abuse.

Singh was not a martyr. The eight-year-old was not a martyr either. They were victims of a heinous crime. Their bodies were abused beyond human comprehension. They were raped and killed. No halo is bright enough to hide that.

Nilanjana Bhowmick is a Delhi-based journalist. She tweets at @nilanjanab.

Has the BJP-PDP Alliance Deepened the Fissures Between Jammu and Kashmir?

The alliance was formed with the objective of bridging the divide between the Jammu region and the Kashmir Valley. But with their competing narratives, have the PDP and BJP pushed the two further away from one another?

New Delhi: The gangrape and murder of an eight-year-old tribal Muslim girl in the Jammu region of Jammu and Kashmir has exposed a festering divide between the two regions of the state. A deep sense of mistrust has been brought to the fore through the polarised reactions to the incident and the linking of the police investigation to a perceived hegemony of Kashmir over Jammu.

Voices in Hindu majority Jammu have seen the accusation on Hindu men of rape and murder inside a temple as an “attack on Hindus and Jammu”. Several citizens of the Jammu region have dismissed the J&K police crime branch’s investigation as “biased”, “unfair” and “unduly influenced by police officers from the Valley” working on directions from the “Peoples Democratic Party’s separatist centric leadership”. These sentiments were initially supported and fanned by the ministers in the Mehbooba Mufti government belonging to the BJP who marched with the national flag demanding the release of the accused, a CBI inquiry into the incident and accusing the police of indiscriminate arrests. The march was also supported by local Congress leaders.

The march prompted Mehbooba Mufti to take to Twitter and say, “Appalled by the marches & protests in defence of the recently apprehended rapist in Kathua. Also horrified by their use of our national flag in these demonstrations, this is nothing short of desecration. The accused has been arrested & the law will follow its course.”

A chief minister had to take to a social media platform to rebuke ministers in her own government who were accusing the police under the J&K government of unfairly targeting people of a particular religion and from one part of the state. The two ministers in question, Lal Singh and Chander Prakash Ganga, were made to resign by the BJP when the nation outraged, belatedly, in April.

However, the ideological and political differences between the alliance partners, the PDP and the BJP, once again stand exposed through the case, with each pandering to very different political constituencies in two divided regions of the state.

The alliance 

After the Jammu and Kashmir assembly elections of 2014 produced a fractured verdict, an alliance between the unlikeliest of partners – the BJP and the PDP – two parties which had diametrically opposite stands on most key issues, was cemented after two months of deliberations. One of the key reasons, outlined by the late Mufti Mohammed Syed, the leader of the PDP at the time, to come together with the BJP, was to bridge the growing divide between the Jammu and Kashmir regions of the troubled state.

In the 2014 polls, the Jammu region had voted overwhelmingly for the BJP with the saffron party winning 25 of the 37 seats in the Hindu majority part of the state. It did not win a single seat in the Kashmir Valley or the Ladakh region. The PDP, on the other hand, won 25 of the 46 seats in the Valley and three seats in the Muslim dominated areas of the Jammu region.

Before joining hands with the BJP, Mufti had mulled forming the government with the support of the National Conference and the Congress party, who had also won most of their seats in the valley and Ladakh. But, that would have meant disrespecting the mandate of the people of Jammu, Mufti said at the time. Whenever questions were asked about the unusual alliance, Mufti went on to highlight the importance of bringing the Jammu and Kashmir regions closer.

Even his daughter and chief minister of J&K since Mufti’s death in 2016, Mehbooba Mufti, has, on several occasions, spoken of the alliance as being an “opportunity to bridge the gap between the people of Jammu and Kashmir”.

A deepening divide

“Bringing Jammu and Kashmir closer” was one of the oft-repeated stated objectives of the alliance. However, has the alliance, in its three years in power, contributed to the opposite?

“Yes,” is the answer according to Siddiq Wahid, a political analyst and the former vice-chancellor of the Islamic University of Science and Technology in Kashmir. Wahid argues that the alliance confirmed the communal divide between the two regions. “Jammu voted a certain way and Kashmir voted a certain way. The alliance was a dishonest one to begin with. It was never going to work. It has only deepened fissures. It confirmed the communal divide after a polarised election,” Wahid said.

While campaigning before the 2014 assembly elections in J&K, the BJP and the PDP campaigned on very different, even opposite, planks. The PDP had campaigned in the valley on the grounds that a vote for them would mean keeping the BJP out of power in the state. While, Narendra Modi, in his characteristic curt manner had campaigned against the musical chairs between the PDP and the National Conference, “Kabhi baap-betay ki sarkar, kabhi baap-beti ki sarkar”.

According to Wahid, the differences between the two parties were never bridged and were visible from the very beginning. “They made this convenient argument that ideological opposites must meet and then the cobbling together of a dishonest, as it turns out, document called the ‘Agenda of Alliance’. The fault lines of the slogan and the document were available for all to see from day one,” Wahid said.

During the three years that the alliance has been in power, leaders from both parties have complained that decisions and statements of the leadership of both parties have adverse consequences for their vastly different constituencies in Jammu and the Kashmir Valley. In 2016, senior PDP leader and MP from Srinagar, Tariq Hamid Qarra, resigned from the party and parliament. He accused the PDP of “facilitating the designs of the RSS” and “surrendering to the brutal policies of the BJP at the Centre”.

Leaders of the BJP, too, have complained of PDP ministers in the state government taking decisions unilaterally on ‘sensitive issues’ which could prove ‘disastrous for the BJP in the Jammu region’. Writing in the Indian Express, senior journalist from the Valley, Muzamil Jaleel, noted, “On the administrative front too, despite the PDP’s claim of a ‘free hand’, there is an unwritten agreement — the PDP takes decisions related to the Valley while the BJP’s writ runs in Jammu.”

The two regions of the state, Jammu and the Valley, have seen deep-rooted divisions due to historical factors. The alliance between the PDP and the BJP has aggravated the divisions, as each party has pandered to its own constituency, with the PDP focussing on the Muslim majority Kashmir valley and the BJP on the Hindu majority Jammu region.

According to Rekha Chowdhary, former professor at the political science department of Jammu University, due to their coming together, both the BJP and the PDP have been under tremendous pressure to prove to their respective constituencies that they haven’t given up on their agenda.

“The PDP in any case was seen as having entered ‘an unholy alliance’ in Kashmir. In Jammu also there developed a feeling that BJP was not in a position to assert itself and was playing a second-fiddle role in the government. As a result, both have wanted to show their respective constituencies that they are not compromising on their agenda and ideology in any way,” said Chowdhary.

“And yes, the alliance has ended up worsening the divide instead of bridging it,” she added.

Building on Wahid’s point of the alliance actually confirming the communal divide between the two regions, Chowdhary argues that post-2014, J&K has seen a very different kind of politics with the Congress and BJP competing in the Hindu majority Jammu region and the National Conference and the PDP competing in the Muslim majority Kashmir Valley.

“The result is a deeper polarisation in the two regions,” Chowdhary said.

With three years still remaining before the current legislative assembly in J&K ends its term, and with both parties determined to last the full term, the polarisation, in coming days, may get worse. 

The Death Penalty Ordinance Has No Leg to Stand On

In reaction to the recent horror in Kathua, the government has birthed a myopic ordinance that awards the death penalty not to rapists, but to victims of rape.

By introducing the ordinance awarding the death penalty to rapists whose victims are under the age of 12, the Indian government has reflected its lack of thinking and commitment to and avoidance of facts and research, and, demonstrated a glaring absence of vision or understanding of rape and why men commit rape. In short, the government has birthed a myopic ordinance that awards the death penalty not to rapists, but to victims of rape.

Sanjay is a rapist. He started on this path by indulging in gateway behaviour. He hit dogs as a boy and remained unpunished. He groped a female classmate and passed lewd comments at girls at the age of 16. He was never reported. He then raped a neighbour’s daughter and she never spoke of it. He gained confidence after this and when he found the opportunity, he used it to harass and molest women on public transport. No one reported him. He soon realised that Indian women are not very likely to report him to the police as they fear going to the police and being harassed as much as they fear their assaulters.

By the time Sanjay was 30, he had raped five different girls and women. However, he realised that with new rage against rape amongst Indian women, it was easier and safer for him to rape younger girls, those under the age of 12. They were physically weaker and could be easily abducted. He could threaten them into silence, and they stayed quiet. However, one day after the politicised rape of an eight-year-old girl, the government of his country introduced an ordinance where raping children under the age of 12 became a capital crime.

Sanjay is a habitual offender. He cannot understand how to stop raping girls, because like most serial offenders, he still wants to rape young girls. But now there is an added risk to his pursuit of crime. He could be hanged for it. He knows he will not stop raping girls, but he cannot take the risk of letting his victims speak out. What will Sanjay’s best strategy be in this scenario, given that he will not stop raping, and, he does not want to die?

This scenario is one that we should look at seriously to look at observable and predictable implications of the government’s latest knee-jerk ordinance to amend the Protection of Children from Sexual Offences Act (POCSO), Code of Criminal Procedure (CrPC)  and the Indian Evidence Act. Policies that are enacted by states throw up incentives and disincentives for individuals, i.e., people don’t always follow policy, instead they respond to it by changing their behaviours. For instance, during demonetisation, not everyone raced to the nearest bank with all their ill-gotten old currency. Some used it to turn a profit by monopolising the distribution of new notes, others bought gold with hidden stacks of old currency from jewellers with back-dated receipts, which were then legally furnished to authorities by the jewellers as bills of sale, and so on.

Following policy and responding to it are two different things. This is the first point of intervention I will make in the debate on capital punishment for rapists. There is mixed evidence from research on the deterrence effect of capital punishment. Isaac Ehrlich’s work in the 1970s, for instance, reports strong deterrence, while earlier studies do not find such effects. Scholars are also divided on the issue of aggregating crime data. At what level does crime deterrence because of capital punishment work – national, federal or local? Further, there is no clear answer as to what types of crimes capital punishment does deter. Joanna M. Shepherd’s work reports a deterrence effect on crimes (murders) of passion, but only when the period the criminal spends on death row is reduced.

Similarly, the work of Dezhbaksh, Rubin and Shepherd also shows that on an average for every state execution in the US there are 18 fewer murders. So the limited claim that can be made is that capital punishment may act as a deterrent for some types of homicidal behaviour. The other substantial assertion that scholars make is that people of colour, or, persons from groups that are weak and marginalised are disproportionately more likely to get sentenced to death for murder.

Most of these studies have emanated in the United States, where some states still have the death penalty on their books. And this is the first problem when we use these arguments for the death penalty in the Indian context. There is simply no comparable study in India that gauges the effects of the death penalty on crimes committed. Second, there is simply no study anywhere that has been able to link the introduction of capital punishment to a decline in the incidence of rape or a complete cessation of rape.

So what then has prompted this new ordinance legalising the death penalty for rapists that target children below the age of 12? As other observers have convincingly argued, this is a political move by a government that has found itself on the back-foot after a huge backlash against rape in India. It is a policy not for justice for rape victims, but for appeasement of those that are publicly dissenting against the government. But most importantly, and I cannot emphasise this enough, this policy move does not rest on the basis of any strong research, need-finding or clear diagnosis or understanding of the problem of rape in India.

In theory, capital punishment may work to deter, not stop and completely prevent, some crimes. However, the debate about capital punishment is expansive enough to call into question the ethics and morality of a society that would support such cruel and unusual punishment. Most interventions by those who oppose the death penalty rest on the ethics of it, the problem of wrongful convictions and irreversibility of death – all good arguments against the death penalty. With respect to the ordinance observers have raised other arguments about the selective nature of the penalty – why is it only for perpetrators that have raped children under 12? What will this penalty do to the reporting of the crime of rape by a family member when 94-98% of all rapes are committed by family members and persons known to the victim?

Leaving all the other valid critiques that have already been offered, let us come back to the original question posed in the opening scenario. What will Sanjay, the serial rapist, do once he knows that rape is punishable by death? If Sanjay were a typical rational actor, he would stop raping young girls. The heaviness of the punishment before him would be enough to stop him, if he were thinking rationally with a full set of information before him.

However, Sanjay has two problems. First, he is a serial offender, i.e., his pattern of behaviour is unlikely to change in the face of the stiffest punishment. Second, he knows there is still a chance that he can get away with it. What he will do is gamble on the chance that he can still go unpunished.

But how will Sanjay maximise his odds of avoiding the death penalty? In his mind, the answer is simple. He absolutely must ensure the girl he rapes will not survive. This is because he knows that she is the only witness to his crime. And, however unlikely it is that she will report the crime, there is still that marginal chance that she will report it, give evidence in court and have him sentenced to death. To ensure that this probability is reduced, Sanjay will decide to kill his rape victim. He also knows that he can wash or burn away forensic evidence, and, even if such evidence is found and produced in court, he knows that convictions without a live witness are low, and convictions in cases of rape are less than 30% in India.

In short, Sanjay and all other rapists like him will instinctively know that the way to avoid the surety of capital punishment is to ensure the death of the victim so that the only conviction made is done on the basis of forensic evidence, which has a smaller chance of resulting in a conviction than an actual witness testimony given the small number of forensic labs in the country and the problems with long chains of custody. If Sanjay is a man of influence and is charged with the crime, he can have the evidence tampered with or ask his local political backers to stand by him and mobilise mobs to disrupt and bias the legal process. Without the witness/victim to attest to the crime, everything else can be spun to fit his narrative.

Our government has introduced an ordinance to manage public pressure and to improve its image as a government that is tough on crime. In doing so it has reflected its lack of thinking, its lack of commitment to and avoidance of facts and research, and, demonstrated a glaring absence of vision or understanding of rape and why men commit rape. In short, the government has birthed a myopic law that awards the death penalty not to rapists, but to victims of rape.

Vasundhara Sirnate Drennan is the Director of Research at The Polis Project Inc. 

Watch: Why Death Penalty For Rapists Isn’t The Solution

Many issues including stigma, family and societal pressure, financial constraints and an insensitive criminal justice system need to be resolved for victims to come forward more and for their rapists to face punishment for their crimes.

Withdraw Demand for Death Penalty to Rapists: Lawyers, Activists to Swati Maliwal

“We recognise that every human being has a right to life. Our rage cannot give way to what are, in no uncertain terms, new cycles of violence.”

New Delhi: A group of lawyers, activists, journalists and other civil society actors have written to Swati Maliwal, chairperson of the Delhi Commission for Women, to ask her to withdraw the indefinite hunger strike she has called to demand the death penalty for those who rape minor girls.

Even as the signatories supported her protest  at the recent gangrape and murder of an eight-year-old girl in Kathua, they asked her to withdraw her hunger strike on “both on humanitarian and substantive grounds”. The activists, in their letter to Maliwal, have expressed their strong opposition to death penalty as a form of punishment.

Maliwal has been on a hunger strike for seven days now.

“We are deeply troubled about the nature and theme of your campaign #RapeRoko that you have initiated since last year. At this juncture we would like to point out that in your capacity as Chair of a Statutory Body, it is essential that you understand and engage with the in-principle opposition that many representatives of the women’s movement have against death penalty,” the group, including lawyers Vrinda Grover and Indira Jaising, CPI(ML) leader Kavita Krishnan, CPI leader Annie Raja and others.

They then go on to detail why they are against the death penalty and do not think it is a good deterrent to rape.

“We recognise that every human being has a right to life. Our rage cannot give way to what are, in no uncertain terms, new cycles of violence. We refuse to deem ‘legitimate’ any act of violence that would give the State the right to take life in our names. Justice meted by the State cannot bypass complex socio-political questions of violence against women by punishing rapists by death. Death penalty is often used to distract attention away from the real issue – it changes nothing but becomes a tool in the hands of the State to further exert its power over its citizens. A huge set of changes are required in the system to end the widespread and daily culture of rape.

There is no evidence to suggest that the death penalty acts as a deterrent to rape. Available data shows that there is a low rate of conviction in rape cases and a strong possibility that the death penalty would lower this conviction rate even further as it is awarded only under the ‘rarest of rare’ circumstances. The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form. NCRB data reveals sharp increase in cases of rape of children by over 82% as compared to 2015. The concern remains that the conviction rate for rapes has been as low as 18.9% in 2016, indicating the high degree of impunity enjoyed by perpetrators of sexual violence in a decade.

An overwhelming number of minors are sexually assaulted by people known to them, and often include near or distant family, friends and partners. Who will be able to face the psychological and social trauma of having reported against their own relatives?

Furthermore, with death penalty at stake, the ‘guardians of the law’ will make sure that no complaints against them get registered and they will go to any length to make sure that justice does not see the light of day.

As we know, in cases of sexual violence where the perpetrator is in a position of power conviction is notoriously difficult. The death penalty, for reasons that have already been mentioned, would make conviction next to impossible.

More importantly in the highly polarized and communalized context we are in, one should recognize the stark reality sexual violence including rape is assuming more horrific and devastating forms. This is compounded by the hate or the ‘us vs. them’ phenomena that breeds on societal bias and prejudice. In such order of crime, you will agree that we need complete probity to ensure that we not only prove the crime but the insidious hate and prejudice that creeps into the core intent of the dastardly and heinous act. All this requires the highest standards of investigation, which you will agree is most often compromised with and when as in the case of Kathua, no stone was left unturned to get to the ‘truth’ and unveil the ugly dimensions of hate crime, it has been undermined and contested by those who are trained and tasked with the responsibility to uphold the rule of law.

In fact, often times, the demand for death penalty takes attention away from the gravity of the real issue: that of ensuring that institutions charged with responsibility to end violence, undertake systemic reforms and measures to dismantle patriarchal social norms that result in gender and other forms of inequalities.”

It is swiftness of punishment rather than severity that should be the focus, the activists have said. They have urged Maliwal to think through their arguments and withdraw her fast. “We urge you to continue building the mandate and outreach of the Delhi Commission for Women, and to ensure effective and timely response to every victim of violence in Delhi; to undertake gender and sex education in all schools of Delhi; and designing campaigns and consultations to end sexual violence in the state of Delhi. We also urge you to work in close coordination with the State Commission on the Rights of the Child and bring about synergies in the administrative responses to the issue. This is a priority and can best be served if the Chair continues to dedicate herself to the several tasks at hand,” they conclude.