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In considering a case, judiciary should hug the law rather than stray beyond it – as implied in “Should Custom Mitigate Punishment?”              

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- John B. Monteiro

Should Custom Mitigate Punishment?

By John B. Monteiro

 “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).

“Whoso sheddeth man’s blood, by man shall his blood be shed.” – Genesis IX 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 (BC4- AD65).

 These are samples of opinions held by philosophers, religions, writers and others on the subject of punishment, varying from an eye for an 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.

 Coinciding with the International Women’s Day, Divya Gandhi, in an exclusive interview with Sushma Tiwari, titled Her struggle for justice against honour killing in The Hindu (8-3-10) highlights a case wherein The Supreme Court of India reduced a punishment on the ground that honour killing is customary for some communities. Sushma writes: “As the Women’s Reservation Bill rings in the centennial year of Women’s Day on a celebratory note, 25-year-old Sushma Tiwari’s story tells of an inspirational fight-back against a brutal form of patriarchy and caste oppression.”

 It has 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.

 Although a fast track sessions court, and later the Bombay high Court, awarded the death penalty to  Dilip and his accomplices, the Supreme Curt, 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 noose.

 The Supreme Court, explaining its decision to revoke the death sentence, 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 has 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 states: “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.”

 Since the case is due for review, it suffices to focus on the cards put on the table by Sushma and the reasoning of the court for reducing the penalty –without further comment.

 The subject is open to many views. What are yours? Over to you.