Published: 09th March 2019
Should caste customs interfere in judicial system and mitigate penalty in a democracy?
The Supreme Court had reduced punishment from death penalty to 25 years of jail time on the ground that honour killing is customary for some communities
He is next to gods whom reason, and not passion, impels and who, after weighing the facts, can measure the punishment with discretion — Claudius, epic poet of Alexandria (365-408)
Those who sheddeth man’s blood, by man shall his blood be shed — Genesis 9:6, Old Testament of the Bible
Hanging was the worst use a man could be put to — Sir Henry Wotton, English author (1568-1639)
The severest punishment a man can receive who has injured another is to have committed the injury; and no man is more severely punished than he who is subject to the whip of his own repentance — Seneca, Roman philosopher (BC 4 - AD 65)
These are samples of opinions held by philosophers, religions, writers and others on the subject of punishment, varying from an eye-to-eye to let off for repentance. These views were based on religious, moral and ethical grounds. But now, we have the laws as anchors to judge the wrong and mete out punishment. Yet, our judges, even at the apex level, seem to bring in other considerations, such as mitigating the matter on the excuse of customs of the community, as reflected in the case cited below. But first, the facts.
This takes us back to nine years wherein Sushma Tiwari filed a revision petition in the Supreme Court against its judgment in a multiple murder case. The Supreme Court had reduced punishment on the ground that honour killing is customary for some communities. Her story tells of an inspirational fight-back against a brutal form of patriarchy and caste oppression. It had been a six-year legal battle for Sushma against the horrific ‘honour killing’ by her brother, Dilip, with his associates, in 2004, seven months after the marriage, of almost her entire marital family: husband Prabhu Nochil, her father-in-law and two minors in their home near Mumbai, all to avenge her marriage into a family of ‘lower’ caste. Sushma is from a Brahmin family of UP, and Prabhu, an Ezhava from Kerala. A pregnant Sushma luckily escaped as she was visiting a relative of hers.
Although a fast track sessions court, and later the Bombay High Court, awarded the death penalty to Dilip and his accomplices, the Supreme Court, in December 2009, reduced the sentence to 25-year-imprisonment. In February 2010 Sushma filed a revision petition questioning the decision to let the convicts off the deadly noose.
The Supreme Court, explaining its decision to revoke the death sentence, had said, ‘It is a common experience that when the younger sister commits something unusual and in this case it was an inter-caste, intercommunity marriage out of (a) secret love affair, then in society it is the elder brother who justifiably or otherwise is held responsible for not stopping such (an) affair. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The vicious grip of the caste, community and religion, though totally unjustified, is a stark reality.’
Sushma had challenged this reasoning, stating that the perception ‘is wrong and totally illegal under our Constitution and various laws of the land and can never be made a ground for lessening the sentence. In fact, these feelings of caste hatred are themselves criminal’. Her petition stated: ‘In fact, mass killing based on the concept of ‘honour’ must be viewed (by the court) as murder which must be given the highest deterrent sentence.’ I am deliberately stopping the narration at this point of offering the topic for responses.
The subject is open to many views. What are yours? Your response, within 250 words should be emailed to email@example.com on or before March 12