What is the Caste of India’s ‘Collective Conscience’, Your Honour?
The only positive thing about the judgment delivered by a Scheduled Caste-Scheduled Tribe court in the Hathras case is that it did not charge the victim, who belonged to the Valmiki caste, with conspiracy against the ‘upper’ caste Thakurs of Hathras.
Otherwise, in the case of the alleged gang rape and murder of a 19-year-old Dalit woman by four ‘upper’ caste men, the court dropped the gang rape charges against all the four accused and acquitted three of them of the murder charge, punishing only one on charges of culpable homicide and atrocity.
This appalling judgment raises a serious question about the impartiality of the judiciary, especially when the accused are from ‘upper’ castes and the victims are from marginalised communities like Dalits or Muslims.
While comparisons are usually odious, juxtaposing the Hathras case against the 2012 Nirbhaya gang rape case shows that the thinking of the judiciary often depends on the social status of the victim. In Nirbhaya’s case, all the accused but one were awarded death sentences because what they did to the woman was so abhorrent that the ‘collective conscience’ of the nation needed to be satisfied. But in the Hathras case, it seemed, there was no ‘collective conscience’ to appease. Was this because the victim was a Dalit? A look at some cases that evoked the judicial rationale of ‘satisfying the collective conscience’ and some cases that did not, demonstrates the answer to this question.
Principles of justice
According to a 2016 study by the National Law University, Delhi, 72% of the Delhi courts’ judgments that awarded death sentences, 42% of the Madhya Pradesh courts and 51% of the Maharashtra courts cited “satisfying the collective conscience” as a major judicial rationale. Another study by the same institute reveals that by 2016, more than 75% of the convicts sentenced to death belonged to Dalit, other backward classes (OBC) and minority communities.
Two questions arise from the reaction of society and the courts in such scenarios:
- Has a death sentence in such crimes ever acted as a deterrent in a society where misogyny and patriarchy are not only structural but encouraged by the state and society?; and
- Is the collective and judicial conscience of society equally disturbed and shocked by every abhorrent crime or does its shock depend on the social backgrounds of the victims?
The answer to the first question is provided by the way humanist and reformatory jurisprudence has evolved from retributory jurisprudence in liberal democratic societies. Mature democracies have conclusively dispelled the myth of the deterrent value of a death sentence in abhorrent crimes, especially in the absence of structural measures aiming at gender sensitivity and representation and a democratic polity and society.
The answer to the second question is horrific, since the collective conscience of Indian society and hence the judiciary has mostly been not only selective on the basis of the social background of the victims, but also predictable due to the fact that the collective is divided on caste, religion, gender, class, etc.
Yet, when according death sentences to convicts, the Indian judiciary has been using the gospel of “the collective conscience” ever since the famous Machhi Singh vs State of Punjab case of 1983, when the Supreme Court codified the circumstances under which death sentences could be awarded in these terms:
“When the collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
Subsequent judgments further conceptualised the award of a death sentence in situations “where barbarity of the offence, social positions of the victims and the perpetrators, abhorrence it creates in the society if the death sentence is not awarded, etc, were to be considered as aggravating circumstances”.
In the Nirbhaya gang rape case of 2012, the Supreme Court rationalised its judgments in these terms:
“While determining sentence in heinous crimes, judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.”
But the application of these parameters has been discriminatory time and again, especially when the victims belonged to the Dalit and Muslim communities.
For example, in the Hathras case, the dying statement of the 19-year-old victim was rejected by the district court on the grounds that the woman had been “tutored” by outsiders since the case was “politicised”. But no other compelling evidence could be produced by the prosecution because the case was registered by the police only 11 days after the rape.
The court also considered the regular visits of the accused to the victim in the hospital not as continuous and overt intimidation by the ‘upper caste’ Thakurs, but as a sign of their good conduct and a strong piece of evidence that they had had no intention to kill the woman.
Even the outrage of society in the form of mass demonstrations all over the country was misunderstood by the court. Instead of perceiving these demonstrations as “expressions of the shock of the collective conscience of society”, it saw them as part of a political conspiracy.
In the case of Nirbahya, however, her dying statement and the public demonstrations against the rape were considered strong enough factors to compel the award of a death sentence.
Selective conscience?
The Nirbhaya case can also be compared with the Khairlanji and Bikis Bano judgments.
In the case of Nirbhaya, the Supreme Court observed:
“The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do.”
In a concurring but separate judgment, Justice Banumati observed:
“The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed shocks the collective conscience of the society. The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’.”
Thus the bestiality, hunger for violence, empowered position of the accused, perversity, etc. in the Nirbhaya case and how it shocked the “collective conscience” of the society were both cited as adequate and fulfilling conditions for the award of a death sentence.
Compare this judicial rationale with the judgment in the equally gruesome, diabolic and dastardly acts of gang rape and murder in Khairlanji and also in the case of Bilkis Bano.
On September 29, 2006, Sureka, Priyanaka, Sudhir and Roshan from a poor Mahar Buddhist family in the remote village of Khairlanji, Maharashtra, were hounded by armed murderers belonging to Savarna castes of the same village. The accused paraded them naked, beat them with rods, inserted blunt weapons into the private parts of the girls, crushed the private parts of the boys with stones and then thrashed all four of them with blunt weapons till they died. Later, their dead bodies were thrown into a channel.
There was a planned conspiracy on the part of the perpetrators to destroy the evidence and underplay the incident as the outcome of an extramarital relationship. Only after a continuous and militant movement staged by Dalits and progressives all over Maharashtra and other parts of the country were the culprits arrested.
Even though the lower court awarded death sentences to eight of the accused, the Bombay high court reduced the sentence to 25 years of imprisonment. After an appeal against this was made in the Supreme Court, its 2019 judgment first deliberated this question:
“Whether the case in hand falls in the category of rarest of the rare cases and the offence(s) committed are of the gravest nature, such that no punishment less than the death sentence will suffice? (sic)“
Then it came to this conclusion:
“On an in depth consideration of the facts and the circumstances in which the ghastly crime of taking away the lives of four innocent persons took place, we find that … the High Court rightly deemed it appropriate that the instant case does not fall amongst the exceptional category of ‘rarest of the rare’ cases where the extreme penalty of death and death alone must be inflicted.”
But how different was the Khairlanji case from the Nirbhaya case in its inhuman barbarity, planned conspiracy, casteist vengeance and haplessness of victims? And why did the court not find it necessary to satisfy the collective conscience of the Dalit community and other marginalised sections of society?
In the Bilkis Bano case, a pregnant woman was gang raped with animalistic perversity by 11 Hindu ‘upper’ caste men while her three-year-old son’s head was pounded on a rock, which killed him, and six other persons accompanying her were brutally massacred.
But the higher courts did not consider this a rarest of the rare type of case. Nor did they feel the necessity to satisfy the ‘collective conscience’, which was not only shocked but terrified. Instead, the accused were sentenced to imprisonment for 14 years. Last year, their sentences were remitted due to good conduct and they are now roaming freely in society.
Judicial question or political?
Addressing a criminal appeal against the remission of the convicts in the Bilkis Bano case, the Supreme Court asked the petitioners: “Merely because the crime was horrific, is remission wrong?”
Your Honour, why are the rights of convicts upheld when the victims are Dalits and members of minority communities and why are the right of victims invoked when the victims belong to Hindu ‘upper’ castes?
Why are the principles of “satisfying the collective conscience” not extended to cases where the collective conscience of Dalits and minority communities is shocked?
What is the caste and religion of the “collective conscience” of India, Your Honour?
(Courtesy: The Wire.)
The Valmiki Family in Hathras Defied Caste Order. Their Dead Daughter Paid the Price.
Yashica Dutt
A few weeks ago, a district court in Hathras acquitted three of the four accused who had raped a Dalit teenager from the district in September 2020. They had choked her with her own dupatta while she was collecting grass from the millet fields in her village, broken her neck, and left her to die. The single conviction that the court made in this case wasn’t given for her killing or even rape but instead ‘culpable homicide NOT amounting to murder’.
This judgment directly contradicted an earlier CBI report that invoked charges of rape, while ignoring the Dalit girl’s dying testimony where she clearly named the four accused. The Hathras court verdict instead sided with senior officials in the UP police and administration who had disputed the rape even taking place, since according to them there were no ‘visible signs of intercourse’. Highlighting yet again the uphill task that is for Dalit women to get justice, even and especially when they’re dead.
The Hathras case as it became known both in national and international media played out in the exact same fashion as the cases of violence against Dalits, especially Dalit women play out across the country. On finding her naked, injured, and bleeding, her mother put clothes back on her and then sat her down on a motorcycle between her older brother and herself to drive her to the local police station. The family is Dalit. But they are not just from any ‘lower’ caste. They are Valmiki, a discerning term that barely conceals the disgust that people harbor against this caste, when what they really want to call them is Bhangi – the caste of manual scavengers, which incidentally is also my own.
When this Valmiki ‘Bhangi’ family reached the police station with their daughter who was in extreme pain, her eyes bloodshot and her tongue mutilated, they laid her down on the ground on a cold, hard slab. And in a typical manner of approach, failed to register a complaint of rape or even sexual assault, even when the Dalit girl suggested that she was sexually harassed and coerced. In fact, when the girl’s older brother pleaded them for help to transport her to the local hospital which was several kilometers away, they suggested the family take her how they got her there – on the back of a motorcycle; shored up between her brother on side and mother on another. The family got an auto instead.
The unwillingness of the police to register complaints of sexual violence and rape, especially when it comes to Dalit women, isn’t new. In fact, the idea of Dalit women as disposable, their lives insignificant and their sexual availability for the taking, is so common, that there have been instances when the police have themselves raped the Dalit woman who came to register their complaint. In the late ’80s, when a Dalit girl named Suman Rani came to a police station in Haryana to report her rape, the police constables allegedly raped her again in the adjoining bathroom.
In the Hathras incident, if the police didn’t actively rob a Dalit girl’s dignity in life, they certainly did so in death. When she passed away in Delhi’s Safdarjung Hospital, after weeks of fighting for her life, the police refused to hand over her body to her family and forcibly cremated her in the dead of the night, after locking her relatives inside their house.
In a case as closely monitored as this, the rushed cremation of a Dalit girl, snatched from her family even in death, justifiably caused outrage, online and in real life. The police and the state machinery responded by imposing section 144 (to prevent large gatherings) and actively stopped any Dalit and opposition leaders, reporters, or supporters from meeting the family by filing FIRs against them. However, neither the police (likely the same officers who had prevented the Valmiki family from performing the last rites on their deceased daughter) nor the state stopped men from the Thakur and other dominant castes along with leaders from right wing outfits like Bajrang Dal, Karni Sen and All India Kshatriya Mahasabha to openly gather and protest to demand justice. Not for the Dalit girl who had been brutalised and was now dead but instead for the rapists who they believe were ‘wrongfully accused’ of the crime.
This sympathy for ‘upper’ caste men, regardless of the heinousness of their crime would be puzzling if we didn’t live in a society that openly dehumanises Dalits and degrades Dalit women. In a social order where Dalits are never intended to prosper, thrive, or even exist in a state that’s anything but depleted, we are always under attack. Our success, whether it’s within the caste-based professions we’re forced to follow or outside of them, is an immediate threat to the so-called culture and penalised harshly.
In the Boolgarhi village where the Valmiki family lived, their house was in close proximity to the four rapists’. According to the judgment report released after the verdict, the Dalit girl’s father and grandfather had previously filed a case under the SC/ST ACT against one of the three acquitted accused, Ravi Kumar and his older brother, Narendra, for assaulting the Dalit girl’s grandfather with a sickle and chopping his fingers after the Dalit elder had objected to them leading their buffaloes to graze on Valmiki family’s land. Ravi Kumar is also the uncle to the Sandeep Sisodia, who earned the lone conviction in the Hathras case, and his brother Narendra is Sandeep’s father. While the case dates back to the early 2001, both Ravi and his brother Narendra were acquitted of it only in 2015 and allegedly spent three months in jail at the time of the crime.
Ravi, Sandeep and the second acquitted accused Ramu (Ravi’s cousin and Sandeep’s other uncle) all cited this old case as the reason behind why the Valmiki family had ‘framed’ them in the fraudulent case of rape and subsequent murder in their individual testimonies. In 2021, the Indian Supreme Court noted that cases filed under the SC/ST Prevention of Atrocity Act often fail to reach conviction due to ‘shoddy investigations’, and witnesses often remain vulnerable to abuse, social boycotts and even violence. They also mentioned that the low conviction rate was often mistaken as proof for these complaints being false, while in reality most SC/ST folks are hesitant to even register complaints for the fear of vengeance from the dominant caste perpetrators.
Additionally, the judgement mentioned that in June 2020, about three months before the incident of rape and subsequent murder of the Dalit girl, their family along with the family of the fourth accused, LuvKush had filed a complaint against the Valmiki family for spreading garbage and dirty drain water in the locality. They cited this recent complaint, which the accused and their families had made and not the other way around, as the reason why the Valmiki family had ‘implicated’ the four dominant caste men in the case.
Dalits, especially ‘Bhangis’ who dare to move out of their segregated spaces and share land with dominant caste neighbours are often blamed for spreading garbage, spilling dirty drain water, and contaminating the area. Often, even the local municipal bodies will choose the proximity to their houses to place an open sewage drain, since they are assumed to be ‘habitual to filth, muck, and smells of sewage’. The Valmiki family’s experience of facing complaints of ‘spreading garbage’ from their dominant caste neighbours comes as no surprise, especially to most ‘Bhangi’ families who live in desegregated areas, including mine. Neighbours often find ways to target Dalits, and charges of littering domestic waste are among the most common forms of social discrimination used against us.
Dalits who defy caste order are routinely taxed with humiliation, abuse, and violence, and these tolls are often extracted on the bodies of Dalit women. In the charge-sheet that CBI produced in the Hathras case, the investigation revealed that the slain Dalit girl was seemingly romantically involved with Sandeep Sisodia, the main accused in the case. In a relationship that allegedly lasted over a year, witnesses confirmed that Sandeep had reportedly stolen gold hoops and a religious trinket so he could sell those to buy her gifts, which had resulted his family members in striking him as punishment. When both families discovered their relationship, they forbid the couple from meeting, and a witness suggested that Sandeep was sent away to Delhi to create some distance between them, ending their relationship However, things deteriorated when Sandeep allegedly found out that the Dalit girl was possibly in a relationship with someone else and as revenge , along with his uncle Ravi, attempted to rape her once before the incident.
Several newspapers and media channels, especially those who feel responsible for maintaining caste order, defended the dominant caste rapists and tried to twist this revelation to claim that it was the Dalit girl’s family who killed her for defying their wishes. Even as the CBI report made it clear that the relationship had seemingly terminated several months before incident.
Inter-caste heterosexual relationships, especially when the female partner is Dalit are often isolating, abusive and as evident from this incident, can be downright dangerous for women. Patriarchy in India guarantees men a vile entitlement over women that can just easily turn vengeful at the slightest hint of rebuke or scorn. Dominant caste men in particular feel beyond reproach when it comes to assaulting Dalit women, likely knowing that they’ll have their communities defending them for putting Dalits in their rightful place. Like the five dominant caste men, out of which two had been convicted for gang-raping a twenty-two-year-old woman in Bhawani, Haryana. When they were released from jail three years later in 2016, they raped her again to punish her for complaining.
India runs on caste, and anyone who suggests otherwise is either too blinded by the privilege their dominant caste provides them or is simply being dishonest because they fear losing their caste status. There is no scenario in 2023 India, in which a Dalit ‘Bhangi’ family can exert more power or status against Kshatriya Thakur men, especially if they live in the same village, and possibly share similar class structures. (In the Hathras case, the skewed power equation was more than evident when the Dalit Valmikis were barred from even saying goodbye to their dead daughter while dominant Thakur openly had rallies held in their support despite a curfew.)
This Valmiki family did not directly engage in manual scavenging, the profession ordained to them by their caste, but instead had cleaning jobs in local businesses. One of the Dalit girl’s older brothers worked in a lab in Ghaziabad (dealing with human excrement and blood are often the natural progression for Dalits in the caste order that dictates our culture), and her father was a sanitary worker in a nearby pharmacy. Their house was also not in a segregated part of the village, where Dalits are often relegated, but instead shared proximity with the houses of the accused. Both reared buffaloes and the Dalit family owned two bighas (a little over half an acre) of allotted land– a discernible status symbol, especially for Dalits who until not too long ago were barred from owning any property, including land and cattle. In an interview to The Hindu, a relative of the family admitted their bigger house and relative prosperity caused animosity among the families of the accused.
In 2016, a dominant caste neighbor in the urban colony where my family lives in Ajmer, severely injured my mother, when he flung a stone at her face. He had retaliated to her closing the open sewage drain that was leaking for months into foundation of our house. . The municipality had allotted the sewage pipe to drain in front our house, the only Bhangi family in the area evidently because they assumed we were the only ones ‘habitual’ to living with sewage that sometimes smelled like death. While the attacker was arrested briefly and then released, my urban, college educated family that lived in the city for generations was eventually pressured into not filing an SC/ST POA case against our neighbor so as to not ‘ruin his life’.
The courage that the Dalit Valmiki family from Hathras showed by not just filing the complaint against the accused but also fighting it out for months in court is exceptional. They have been living under constant threat of violence and assault for years while standing up to immense pressure from an administration that is more likely to blame international media’s conspiracy theories for its own inaction. Yet, they refused to scatter their daughter’s ashes until she gets the justice she deserves. And if this latest verdict is any indication, it seems like they’ll be waiting for a long time to come.
(Yashica Dutt is a writer covering issues of gender, identity and culture. Courtesy: The Wire.)
