The Price Of Love
By Bobby Kunhu
29 March, 2010
Countercurrents.org
A fairly violent story that seems to have largely escaped mainstream media attention has come to haunt me of late. More than the story itself, it is the bizarre conclusion of the story in the Supreme Court of India that troubles me.
This story is located bang in the middle of one of the prominent suburbs of Mumbai. Let me start at the very beginning, Sushma Tiwari, a UP Brahmin and Prabhu Nochil, an Ezhava, neighbours, fell in love and decided to get married despite the opposition of Sushma's family. Seven months into the marriage, a pregnant Sushma was sent to a relative's house following continual threats and harassment from her family. One night Sushma's brother Dilip and three of his friends barged into Prabhu's house and brutally stabbed everyone present there with the intention to kill. Prabhu, his father, a teen-aged cousin and a neighbour succumbed to the stabs and died, while Prabhu's mother and sister survived after prolonged treatment. Very clearly a case of honour killing.
The case against Dilip and his accomplices was fairly open and shut and it would have been difficult not to get a conviction. A fast track sessions court convicted Dilip and two of his associates and sentenced them to death - the highest punishment available under the Indian penal system. The conviction and sentence was upheld by the Mumbai High Court, while the Supreme Court upheld the conviction but commuted the sentence to life imprisonment of a minimum duration of 25 years each for two of the accused and 20 years for one last December. The case is back in contention with Sushma Tiwari filing a review against the commutation of sentence last month.
At the outset, let me declare that I am against Capital punishment. It is in that context that the Supreme Court judgement becomes problematic and Sushma's review petition becomes pertinent. While commuting the sentence the Supreme Court reasons that;
"Sushma was the younger sister of this accused. It is a common experience that when the younger sister commits something unusual and in this case it was an intercaste, intercommunity marriage out of the secret love affair, then in the society it is the elder brother who justifiably or otherwise is held responsible for not stopping such affair. It is held as the family defeat. At times, he has to suffer taunts and snide remarks even from the persons who really have no business to poke their nose into the affairs of the family. Dilip, therefore, must have been a prey of the so-called insult which his younger sister had imposed upon his family and that must have been in his mind for seven long months. It has come in the evidence that even if the marriage was performed with Prabhu, there were efforts made by the family members of Dilip to bring Sushma back. It has come in evidence that mother of Dilip tried to lure back Sushma and so did her other married sister Kalpana who actually went on to meet Sushma in her college. Those efforts paid no dividends. In stead, Sushma kept on attending the college thereby openly mixing with the society. This must have added insult to the injury felt by the family members and more particularly, accused Dilip. Why did he wait for seven months? The answer lies in the fact that Sushma became pregnant and thus reached a point of no return. Till such time as she became pregnant, there might have been some hopes in the family to win her back but once she became pregnant, even that distant hope faded away and, in our opinion, that is the reason why this ghastly episode took place. As if all this was not sufficient, Dilip himself must have had the feeling of being cheated. It is not that Dilip did not know Prabhu who was living only three houses away from his house. The secret love affair which went on between Sushma and Prabhu for which Abhayraj acted as a messenger must have raised the feeling of being cheated by Prabhu. This was further aggravated because of the so-called higher status of a Brahmin family on the part of Dilip and so- called non-Brahmin status of Prabhu. It has come on record that Sushma was moved to Andheri at the house of Shashidharan and this ought to have added as a spark which resulted in tornado. Dilip undoubtedly was a young person not even having crossed his 25 years of life and not having any criminal antecedent. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The murders were the outcome of social issue like a marriage with a person of so-called lower caste. However, a time has come when we have to consider these social issues as relevant, while considering the death sentence in the circumstances as these. The caste is a concept which grips a person before his birth and does not leave him even after his death. The vicious grip of the caste, community, religion, though totally unjustified, is a stark reality. The psyche of the offender in the background of a social issue like an inter-caste-community marriage, though wholly unjustified would have to be considered in the peculiar circumstances of this case. "
This convoluted reasoning on one hand upholds the sanctity of death penalty as the highest form of punishment and then goes on to assert that the above crime is not heinous enough to attract the highest punishment. It reduces the culpability of the offenders on the ground that caste and gender considerations can mitigate the intensity of the crime. I thought the highest court of the land would argue otherwise - that the casteist and patriarchal motives that spurred the crime would aggravate the intensity of the crime.
This judgement reveals the obvious social conflict between modernity and feudalism that the Indian society seems to be grappling with and affirms an argument that I have been often repeating that the judiciary is located bang in the middle of the social fabric of this country. It also reflects an increasing lack of jurisprudential grip over criminal justice dispensation. The judgement also exposes the facade of modernity and progressiveness that shining India espouses. Here is a story that happened bang in the middle of urban India, exploding the myth that caste violence exists only in the rural hinterland, a story that did not find equal place in mainstream media along with a farcical Love Jihad, and this story was handled callously by the apex court.
I am glad that Sushma Tiwari has decided to challenge the decision. I do not want to see Dilip Narayan Tiwari or any other person to be awarded the death penalty, but I would want to see the heinous crime to be legally seen for what it is. I would want the Supreme Court to acknowledge the persistence of these offences in Indian society. I hope that the Supreme Court uses this opportunity to take forward the discourse on the death penalty towards an abolitionist position while asserting in the strongest possible terms the Constitutional diktat against caste and gender based violence. I hope the Supreme Court would remember Justice Krishna Iyer's words from Rajendra Prasad v. State of UP;
"The main focus of our judgment is on this poignant gap in 'human rights jurisprudence' within the limits of the Penal Code, impregnated by the Constitution. To put it pithily, a world order voicing the worth of the human person, a cultural legacy charged with compassion, an interpretative liberation from colonial callousness to life and liberty, a concern for social justice as setting the rights of individual justice, interest With the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21. "
