Rape, murder, and a demeaning verdict

What exactly are some Indian judges smoking? In a 141-page judgment that sentences a watchman to life imprisonment for the rape and murder of a young lawyer residing in the building he guarded, the language used by the bench is disgusting.

I am against capital punishment, and while the parents of Pallavi Purkayastha naturally wanted the criminal Sajjad Pathan to suffer for the cruelty and their loss it is not a personal battle.

However, should the judge not display some amount of sensitivity? She was attacked 16 times, and the prosecution thought this was extreme cruelty. The judge Vrushali Joshi said:

"It caused her a painful death. This can be termed as cruelty, but not extreme cruelty."

I am aware that these terms are in the rule-book and a judgment cannot rely on emotions, but what are the yardsticks to gauge extreme cruelty?

There is more:

Refuting the prosecution's case that it was a pre-planned murder, the court said when Pathan first answered Pallavi's plea for help after the power went off, he took another watchman to the 16th floor where she lived but did not enter the flat. "At 1am again, when the victim called him, he went with Khalid (electrician) when he could go alone," the judge said. The court added that from the records it appeared that when he saw Pallavi in scanty clothes, "he was excited and it was the point when he thought of ravishing her".

What is this? Where are those who keep talking about 'victim shaming' when it involves celebrities? The judge is casting aspersions on a woman who is not even around to defend herself. I am surprised Sajjad was not let off, given the tone of the verdict. The implication here is that he was a good guy who was in fact not comfortable going to the apartment of a young woman. Why? She was a resident like any other. Worse, the judge says that it was her clothes that "excited" him and "he thought of ravishing her". Rape is ravishment?

It is back again to what women wear, how they live, and the effect it has on the hormonal male mind. That he gets a character certificate for until that moment when he could not control himself should tell us just the kind of society we live in. To take a broader view, an example of this comes from the statement of Pallavi's live-in partner Avik Sengupta (who died due to a brain ailment later). While recording his statement during the trial he had mentioned that she used to complain about Sajjad staring at her. His response was: "You are a pretty woman."

Back to the judgment, some of it is absolutely shocking:

The prosecution had claimed that the most aggravating circumstance against Pathan was that he had boasted about the crime and even laughed about it. But the court observed that he must have laughed as he was frightened after committing the crime and said that Pallavi being a strong girl had resisted him. "One cannot come to the conclusion that he must have enjoyed killing her," the judge said.

So the judge is psychoanalysing it as nervous laughter and covertly blaming the victim for being "a strong girl". The fact that she resisted till the very end — there were blood trails till her neighbour's flat indicating she was seeking help — draws attention to the rapist-murderer's intent and not become reason to highlight his laughing at her strength.

He is young and I agree with the tenure of the sentence. Life imprisonment should set him right. I do not agree with those who think the death sentence works as a lesson. If anything, the judgments should be worded with care and send out a signal to people. Women should be made to feel safe and empowered and men should be made to realise that they have no right to infringe on a woman's body or space irrespective of how she is dressed or how she chooses to live.

The person committing the crime is not the only criminal.

Another point:

Earlier reports that quoted Sajjad Pathan's security agency head as saying that he has brought shame to Kashmiris. Some newspapers played this up. How often do you hear about a whole region responsible for the acts of an individual? Immigrants have been blamed, but it does not become a cause for the state they come from to feel chastised. Sajjad Pathan could be from anywhere.

© Farzana Versey

No end to justice: The Aarushi-Hemraj murder verdict

The verdict is out. But this is only another beginning. Rajesh and Nupur Talwar, parents of 14-year-old Aarushi have been pronounced guilty of her murder and that of their domestic help, Hemraj, in the early hours of May 16, 2008. There is also the charge of destroying evidence and filing a false FIR.

They issued a statement saying they will fight for justice. For themselves. Aarushi, even in death, was treated with disdain. Every bit of her for public consumption. No one was concerned about her reputation. Dead people don't have reputations. No one was concerned about Hemraj. I include myself in this group of people who treated his death cursorily.

This is what the death of the poor mean. What is even more astonishing is that after the verdict, there is sadness. People have short memories. The media that enjoyed the spectacle of conjecture now talks about probity. The media that sensationalised the case now thinks in terms of giving respectful space and not judging. Who were they to judge, to begin with? But not only did they judge, they decided on the 'turn of events'. Reporters were posted in Noida and acted as detectives. The change was quite evident.

I have written quite a bit about the case and following are excerpts.

June 2, 2008

Her father Dr. Rajesh Talwar is under suspicion for having killed her and their servant because he found them in a compromising position; other reports suggest that the girl knew about her father’s extra-marital affair. Whatever it is, I do find it surprising that the mother, Nupur, is appearing on several television channels to save her husband. She should be in the lawyer’s offices, with the police. Not giving sound bytes to the cameras. I am afraid I feel no sympathy for her when I watch her. Besides, they say she was in the house when the murders took place.

[I mentioned today that she was on TV a day after the murder. There were cameras covering this, so I did think in terms of a soundbite. Now, it appears she gave an interview to NDTV a week later. Apparently, that is fine. Also, I am told to remember that she was "stoic". That is not the point. It is whether you want justice for your daughter or for your husband and yourself?]

Now comes the part about the media. Aaj Tak channel had a story in the initial days titled, “Papa yeh tu ne kya kiya?” (Papa, what have you done?) What is this? Some soap opera? And when the mother was mentioned they played the track of the song “Maa…tu sab jaanti hai…” from the film Taare Zameen Par.

July 13, 2008

Criticising the UP police once again for their alleged irresponsible handling of the Aarushi murder case, Union minister for women and child development Renuka Choudhary said that the family should sue the police. “The family should sue the state police and those responsible for bungling the case must be suspended,’’ she said.

This isn’t mere concern about how the case was handled and the character assassination of Aarushi’s father Dr. Rajesh Talwar. It is about party politics.

This is a way to make the Mayawati government accountable.

It is true the police was most shabby in how they went about getting evidence, but why did the Talwars not mention their compounder Krishna’s name right then? Now he is the prime suspect. The question also remains as to where the parents were when the murder took place and how soon did they inform the police.

And just for the information of the minister, it wasn’t merely the cops who tarnished Aarushi’s name; the media went haywire. There was no need to report all that and no need to show all those teachers and students certifying the girl’s reputation. All this only draws attention to something that may be untrue but gives enough scope for rumours.

Dec 30, 2010

The CBI can’t solve a case. Aarushi... has left enough traces. But those traces do not seem to find their way to the source.

The Central Bureau of Investigation came into the picture soon after the Noida police made no headway. Perhaps, the entry of the CBI was the big mistake. Big people need big people to get mouths shut.

They found the weapon, they have a reasonable motive – “immediate provocation”, they know of missing files and the swapped vaginal swab, they know that someone was tampering with evidence. Then, why is it so difficult to find out who and why?

It is impossible that the findings reveal absolutely nothing. What did the DNA sample show? What did the brain-mapping reveal? Who cleared the room before the police came in? It need not be one person. These are people in different places doing different things. Who was calling the shots? And why?

Instead, the CBI has washed its hands of the case:

“The agency has filed a final report for the closure of the case on grounds of insufficient evidence in the competent court.”

It has been only two and a half years. There are cases that are pending for decades. I would like to see what Aarushi’s parents do next. It must surely be tough on them to have a daughter raped and murdered in the next room and the place cleaned up while they were around just a few metres away, isn’t it? They should file a case against the Noida police and the CBI and the hospital authorities for shirking their duty and making a mockery of justice.

They have the power, being educated and relatively better-off than many who do not have the means. Let this be a fight for the silent Aarushis and the silenced ones.

I don't know what to add except that there are silenced Hemrajs too.

There cannot be closure for facts change over a period of time because perceptions of them do.

The call of the muezzin in court

It is such judgements that should make us have faith in the judiciary. Not only has it upheld secularism in Constitutional terms, it has also conveyed that politicians cannot pander to communal sentiments.

Imams and muezzins are most certainly not the responsibility of the government in India. The Calcutta High Court has made it clear that it is not the business of the state government to provide funds to the Wakf Board:

"It is well settled that the state cannot patronize or favour any particular religion. Secularism is part of the basic structure of our Constitution. The state, therefore, cannot identify itself with or favour any particular religion. Imams and/or muezzins are individuals of the Muslim community and attached with mosques. The decision to provide honorarium to them cannot serve the general interest of the community as a whole."

However, I do not see why the judges had to add that it had “unnecessarily created tension among different religious communities which should be avoided in a secular state”. The BJP was one of the petitioners against the Rs. 2500 and Rs. 1000 stipend to the imams and muezzins. What if the Mamata Banerjee government decided to also provide for sadhus in temples – would the bench think of this as equitable and secular because it would then favour others, too?

At the centre of the discord is “public purpose”, with the state believing it should be given the privilege. The court reiterated:

"The concept of public purpose cannot be contrary to the pronounced constitutional value of secularism. If today the government is allowed to spend out of the public exchequer by granting honorarium to the religious leaders of a particular religious community to the exclusion of similar treatment to other religious communities, such a governmental action being unconstitutional, cannot be said to be for public purpose."

While I completely agree that those attached to mosques should be given an honorarium only by the authorities running such institutions and the government owes it nothing – in fact, the community should shun such gestures by the political establishment – I do believe the judges were trying to be politically-correct.

This ought not to become a precedent against minorities and scheduled castes and tribes where ‘secularism’ will be brought in to argue against certain kinds of reservations that have to do with right to opportunity that has been often denied to many.

Let us not forget that Mamata Banerjee is no friend of tribals or even some minorities. Recall the villages that were thrown open for corporate ventures. It is important for the leaders of communities to be alert. Most politicians will only pander to what are explicitly religious places, because they want the sops to be visible from miles away. The ordinary Muslim, Hindu, Christian, Sikh, Dalit does not know, or care about, who runs the show.

It is this ordinary daily wage earner who needs such ‘gestures’ the most. Secularism must not come in the way of that. For, as we know only too well, money is the most secular, and it is in the hands of a few who probably spend more time building places of worship or donating to it. Some even work as backroom boys to prop up political parties with a religious agenda.

©Farzana Versey

The last accusation?

Now a dying declaration can be recorded by anyone, according to a judgement passed by the Supreme Court in its reversal of a high court verdict.

The case: A dowry death where the woman's in-laws set her ablaze. She suffered 100% burns. Her statement was dismissed because the Madhya Pradesh High Court doubted its veracity.

The counter-argument was that she had suffered abuse in her matrimonial home and there was every reason to believe her. The SC agreed and according to a report, “You need not be a police officer, doctor or a magistrate to record the dying declaration, a statement accusing those responsible for the death of the person making his last possible statement".

The bench further added, "The person who records a dying declaration must be satisfied that the maker is in a fair state of mind and is capable of making such a statement...Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case."

Besides the ability to gauge the state of mind, what cases will be exempt?

The court has specified that such an allowance will be certainly applicable in burns cases. It is true that it might help a lot of women who continue to go though this torture. But what if the burns are not as severe and she dies due to other complications?

The possibility of such declarations being questioned increases simply because the person recording them is likely to be close to the victim. The law relies on evidence, and it would be more sensible if the case was dealt with by the police.

On the face of it, this appears to be a move to ease the bureaucratic method of having a doctor or cop at hand. However, it could end up in further legal wrangles.

A person dying is not in a stable mental condition, so the very crux of the provision could be argued. What happens if the woman had a history of depression, quite possibly as a result of the incessant abuse? Would her dying declaration hold? Unlikely.

It may be used against her, whereas an 'authority' figure recording it could have helped. Some things do appear progressive and easy on paper, but their execution is not only never foolproof, it leads to even more problems.

I do not see why a declaration is needed at all. No woman will douse herself with kerosene and light a matchstick.

Imagine the complications where other means are used to kill. Suppose the woman has been strangled to death, or poisoned? The same queries might be posed in other cases, too, irrespective of gender.

It might sound like something from a bad film, but what if together with the dying declaration a helpful relative or friend manages to get other declarations, including property papers or even establishes a relationship closer than the one that exists? And since the 'recorder' is an expert at judging mental balance, and the victim is deemed to be in a state of sound mind, how will the court manage this side-effect?

© Farzana Versey

Let's dance

People were dancing, some close, some in a frenzy. The cops landed up and arrested them. This was private space in Mumbai, the great metro. Goes against our culture, say the moral police. Encourages unhealthy activities, they continue.

I can understand if they were in the streets or in places that families with young kids frequent.

Anyhow, another case came up for hearing to let the place remain open until late and permit people to dance. The comment by the judges is curious:

“One may think 3 am is too late; others may not. Customers want to dance. Somebody putting their hands up and dancing cannot be objected to. Innocuous dancing can be permitted. As long as nothing obscene or objectionable is happening… If police comes like this, then customers will be afraid.”

This is in a five-star hotel and people are not forced into it. What does putting hands up mean? What if the hands are not up? Is this a call for surrender? Some dances do not need the hands to be up.

Have the cops and those who are concerned about our culture ever objected to drunken street dancing during festivals? What about the ‘eve-teasing’? What about marriage functions? The young do dress provocatively at many of these. Only because it is ethnic clothes, it does not make them less titillating. And the hip swaying even in our kiddie talent contests on TV should tell us that we aren’t really a whitewashed culture.

Dance is an important manisfestation of our culture, anyway. Shiva’s nataraj dance, Krishna’s ras leela, and Menaka’s seduction of sage Vishvamitra are well-known. What about the mad-as-hell dervish moves at Sufi shrines?

I am a bit surprised that while passing the judgement, the bench mentioned that not allowing dancing would be a dampener for tourism. I do not think people from outside come here to dance. This is about us and how the urbanites socialise. The cops, the same cops who have often been caught molesting young girls, need not look beyond their own little dirty minds before they arrest people who are doing so of their own free will. Certain big industrialists have private parties that openly serve drugs. Has anyone heard about arrests there?

I don’t understand why every report mentions ‘dirty dancing’. And, yes, some years ago a television channel had taken shots of a discotheque to serve some voyeuristic purpose.

Dance can be a release or an elevating experience. The gliding on the floor, the meeting of eyes, the touch around the waist, the bend and the curve. It is a beautiful sight. People may lose control, but that happens even when you are not on the dance floor.