HC Verdict On Khairlanji: Diluting The Design Justice
By Anand Teltumbde
09 August, 2010
While commuting the death sentence of the six convicts in the Khairlanji dalit killings case to imprisonment for 25 years, the high court did not think there was a caste angle or any planning or outraging modesty of women was involved in the crime. The whole episode reveals, in a microcosm, the character of the state vis-à-vis dalits.
The much awaited verdict of the High Court on the confirmation case (to confirm the death sentence awarded to six accused) and four appeals (two by CBI and two by the accused) was at last out on 14 July 2010. As expected, the justices AP Lavande and RC Chavan of the Nagpur bench of Bombay high court commuted the death sentence of six convicts in the Khairlanji Dalit killings case to 25 years imprisonment. Basically, the honourable court did not think it was the “rarest of the rare” case and confirmed that there was neither caste angle nor any planning involved in the crime. Expectedly, it caused flutters among Dalits, who had rejoiced at the previous verdict of the Bhandara Sessions court unprecedentedly awarding death to six of the eight accused. As in its making, Khairlanji in its dispensation through courts, past, present and possibly future-- now that it will certainly go to Supreme Court to assuage the feelings of Dalits-- will continue to show us the ugly facets of our system.
Design Justice and Stupid Us
Khairlanji, in which a Dalit mother and her daughter and two sons were lynched by the upper caste village mob to death as the culmination of a long caste conflict was initially sought to be suppressed but it burst out into a spontaneous statewide agitation. While the government came down heavily against this agitation, labeling it as naxal induced, it had to invite CBI to investigate it and designate the session court at Bhandara as the ‘fast track’ court. The state however managed not to lose its control over the outcome and appointed its prosecutor ignoring the nomination of advocate Shashi Bhushan Wahane as proposed by one organization that played a big role in exposing the incident. As it was churned out in legal proceedings, the fast track court, which was constituted with the premise of application of the Atrocity Act (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989), came to the conclusion that there was no caste angle to the crime (and hence this Act did not apply), there was no outrage of women’s modesty and it was not a premeditated crime. Thus, it painted this gory atrocity as a simple crime that gets committed in a feat of rage. However, it compensated this characterization deficit by awarding death to six of the eight accused and life imprisonment to two on the ground of their young age.
The judgement was hailed as the landmark because it was for the first time that deaths were awarded in the case of caste atrocity. The Dalit leaders had publicly celebrated it by distributing sweets. Ramdas Athawale, felicitated Ujwal Nikam, the high profile public prosecutor in the case, ignoring the fact that not many years ago, he had stood in defence of Manohar Kadam, that infamous butcher of Ramabai Nagar. Dalits, who have been observing the anniversary of Ramabai Nagar martyrdom every year, magnanimously ignored this misdemeanor of their leader. But should they have rejoiced at the broad depiction of the case as a mere crime committed in a huff? Khairlanji had a heavy context of a decade long caste conflict, for anyone to see but unfortunately the prosecution failed to present it to the court. Rapes as reported by fact finding teams was out of bounds because of the lacuna in post mortem, but the women’s naked corpses cried aloud that their modesty was outraged. The prosecution failed to establish what was so obvious. It also failed to show that it was planned when the villagers knew that Surekha and Priyanka had identified the assaulters of Siddharth Gajbhiye to the police. Having taken out all winds of its sails, the court still punished as many as six persons with death sentence. The way the case was made out, surely the death sentence was unsustainable. But Dalits celebrated it by distributing sweets, following their jubilant leaders.
Victim of the Caste of Mind
The major lacuna in the khairlanji case is the denial that the atrocity was a caste atrocity. The argument that it was a result of revenge for being implicated in a case can be extended to virtually any and everything reducing the Atrocity Act to nonsense. How can anyone prove that a crime is committed because of caste? The Atrocity Act therefore had a simple definition of an atrocity as a crime committed by a non-SC/ST on an SC/ST person. Considered as the ‘only act with teeth’, it gets completely neutralized by courts getting into a question of its applicability. It becomes a cast of mind of the judges to see or not see a crime as a caste crime. If Khairlanji, a veritable text book case of a caste atrocity, could be rejected as a caste crime, it would be better if they scrap the Atrocity Act altogether and save Dalits from the false consciousness that the state is concerned for them.
Much acclaimed by the Dalits and equally hated by the non-Dalits, the Atrocity Act has been controversial right from the day it became applicable. While there is so much clamour about it completing 20 years, it is forgotten that it became applicable only after its rules were framed full six years after (in 1995) it was promulgated. Immediately, Shiv Sena in Maharashtra, Samajwadi Party in UP and such others elsewhere raised hue and cry against it and demanded its scrapping. The rules specify an elaborate infrastructure comprising special courts, panels of advocates to be prosecutors, monitoring machinery, etc. But as it stands, nowhere its rules are fully complied with. As a result, even the prime minister had to express concern over the low conviction rate in atrocity cases, over a much constricted base because of the reluctance to register crime under it by the police. As a matter of fact, in a factual analysis it would turn out as another ploy of the state to fool Dalits. It just seeks to see crime against SC/ST little more stringently than the IPC. One of the appeals of the CBI challenged acquittal of all the accused from various sections of the atrocity Act, which notwithstanding the absence of serious efforts on its part, could be considered inconsequential in the face of extreme punishment of death and life imprisonment.
Khairlanji is the crime of not only the civil society but also the state. Rather one can see major role of the state actors in its making and thereafter in denying justice to the victims. The Atrocity Act significantly provides for trial and punishment of these actors. Although, all the fact finding reports highlighted the crime of the state officials in Khairlanji, this aspect remained inexplicably untouched in the prosecution case. Also, there is no attempt to challenge the acquittal of the three persons in the appeal, one of whom is said to be the close relation of a local NCP MLA.
Death as Deterrent
The death penalty appears to be the sole focus yesterday of the cause of celebration and today of despair of Dalits. Besides, the primitive notion of sadistic revenge, death penalty is mistakenly taken as deterrent. It has been an established fact that death penalty does not deter crime. Almost all the developed countries have abolished it and have far lesser crime rates than those which still have death penalty. The United States is one of only three industrialized democracies that still have it; the others being Japan and South Korea. However, many states in the USA do not have death penalty. It could be revealing to see the impact of the death penalty as a deterrent by comparing the crime rates in the states practicing death penalty and those who do not within the US. The data on crime rate from 1990 to 2007 show that the states without the death penalty have had consistently lower murder rates; the percentage difference being as high as 46 percent. Morally the death penalty is just not sustainable. Death penalty in modern jurisprudence remains as an anomaly. The state just does not have authority to destroy life. If at all, only the victims of atrocity could have the moral claim to avenge the crime in a mode of war.
As an aside, it is distressing to see Dalits demanding death punishment, which empirically appears to be almost reserved for the lower castes. Some years back, a Gaya-based human rights activist and PUCL member Prabhat Kumar Shandilya had pointed out that people belonging to only Dalit and lower castes, tribals and minorities were awarded death sentence and no culprit of upper caste ever went to the gallows after the Independence; with the only exception of Nathuram Godse and Narayan Apte, the killers of Mahatma Gandhi, and lastly Dhananjoy Chatterjee, who had raped and killed a 14-year-old schoolgirl in Calcutta. A veritable cent percent reservation for the lower castes and minorities to the gallows!
State Rewards Khairlanji
The caste atrocities are no ordinary crime; they are backed by the caste ideology and culture. The committers of these crimes are charged with self righteousness. It does need force to shake them out of their belief system. And that force could verily be the state force. It can be the real deterrent, only if the state has the will. The track record of the state however reassures the committers of caste crimes that could go on. Khairlanji murderers were well aware of the crime they were committing. But they were reasonably sure that they would manage to escape through the labyrinthine process of law. In fact they had almost managed the cover up at local levels which could only crack under pressure of public outrage. It is still rumoured locally that the kingpins are already out. It reveals in microcosm the character of the state vis-à-vis Dalits.
Khairlanji had history of caste conflicts. Having eliminated the only assertive family of Bhotmanges, the balance two Dalit families were further subdued. The village had become a virtual police camp. Even before the disgust of the world over the brutal murders had waned, the state government this year rewarded Khairlanji with Rs 1 lakh under the states’s tanta-mukta abhiyan (dispute-free campaign). The meaning is clear: the state gives a damn to Dalits!
Dr. Anand Teltumbde is a writer, political analyst and civil rights activist with the Committee for the Protection of Democratic Rights, Mumbai.