Sexual Harassment of Women Reflections on the Private Sector

The private sector in India has by and large not been very receptive to women's complaints about sexual harassment at the workplace. This article highlights the importance of company policies on sexual harassment, the role of their human resource departments, and says that the private sector has to clearly articulate and uphold its code of conduct to prevent and address sexual harassment at the workplace. The effectiveness of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 remains to be seen.

Even while the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2013 was being discussed (before it was enacted on 22 April 2013), the national press was reporting defiance of the Supreme Court’s (SC) Vishaka guidelines by multinational companies.¹ A glaring instance involved the multinational audit firm KPMG, which operates in 156 countries, including India. In 2006, a chartered accountant working in a senior position complained against a partner, but the firm failed to constitute a complaints committee as mandated by the Vishaka guidelines of 1997. Instead, her services were terminated, severely hampering her prospects for future career growth (Deshpande 2013a). She faced a disparaging campaign online after her name was revealed in 2007 in reports on the case. Her ordeal continues as she goes on with her battle. She faces problems in finding new employment, and has been branded a legal terrorist (Menon 2013).

For 15 years, government agencies such as the National Commission for Women (NCW) and women’s groups consistently pressed for a law on sexual harassment. If one looked at the implementation of the SC-directed Vishaka guidelines (1997) it was observed that their implementation in the private sector remained uneven. A 2010 survey brought out that 88% of the women working in information technology (IT) and business process outsourcing (BPO)/knowledge process outsourcing (KPO) companies had suffered some form of workplace sexual harassment (Sharma 2010). Media reports and studies show that many private sector organisations do not have any special policy on sexual harassment. Even where policies exist, strict and compulsory adherence to them is rare. The dismal situation needs urgent attention. This article attempts an overview of sexual harassment in the private sector in India and puts together suggestions to overcome them. It analyses the issue on the basis of the implementation of the SC’s guidelines, the importance of workplace policies on sexual harassment, and the role of human resource (HR) departments.

Reluctant Private Sector

The SC’s Vishaka guidelines initiated a discourse in India on sexual harassment and benefited women by reconfirming their right to a safe working environment. They proposed providing a safe and gender-friendly atmosphere for working women by instituting in-house mechanisms for redressing complaints. Surveys done by organisations across India over the years have revealed that employers either choose to ignore the guidelines or to not take them seriously. Sexual harassment at the workplace remains the most under-reported form of gender discrimination (Shukla 2002) and the private sector has been very reluctant to acknowledge its existence.

Poor and faulty implementation of the Vishaka guidelines has been discussed by Oversier (2010) and Majumdar (2003). The industry persons and academicians quoted in these studies confirm that the issue of sexual harassment has largely been swept under the carpet in India. Further, they accept that the provisions have never been successfully invoked because of the social taboos still associated with sexual harassment and the long delay if a case ends up in court. Overall awareness among Indian companies about the need for a well-defined mechanism to tackle sexual harassment at the workplace is terribly poor. Moreover, multinational companies seemed to be taking advantage of the space left by the absence of a law.

Sarpotdar (2012) gives an insight into the uphill task women face. Challenging an employer is overwhelming and practically difficult for any woman who has faced sexual harassment, given the enormous cost it entails in terms of time, energy, and determination. Fighting powerful transnational companies, which have tremendous resources, is liable to crush women as it is not just a question of tackling an unyielding employer, but also confronting bureaucratic challenges thrown up by the police and the courts. Women’s rights activists point out that organisations generally view such cases from the perspective of their public image and not as a breach of an individual employee’s right to dignity and safety, leading to skewed attitudes and hushing up of such cases (Deshpande 2013b).

It is important to note that the SC in an interim order issued in 2006 designated the labour commissioner’s office of each state as the nodal agency to collect details about complaints of sexual harassment and to make sure that the required committees are established in factories, shops and commercial establishments.² Records at the Maharashtra Labour Commissioner’s office examined by Pinglay (2012) showed only three complaints from 2010 to 2012, while there were 700 complaints registered unofficially at the Karnataka Labour Commissioner’s office (Phadnis 2013). This revealed serious problems in companies complying with the SC’s directions. Taking cognisance of this, the apex court reiterated its directions in Medha Kotwal vs Union of India (2012), with special reference to nursing homes, law, architecture, and engineering firms. It directed statutory institutes to ensure that the organisations, bodies, associations, institutions, and persons registered/affiliated with them followed the Vishaka guidelines.

In 2011, a report by a Joint Parliamentary Committee (JPC) reviewed the Sexual Harassment Bill 2010 and summarised the issue.³ It recorded that the absence of a central mechanism meant there was no database with the Ministry of Women and Child Development on the number of complaints, their resolution, and the action taken, especially in the private sector. As a consequence, the extent of implementation of the Vishaka guidelines in the private sector could not be ascertained. The JPC concluded that in the absence of penal provisions, compliance by employers in the private sector could be lax, and that the SC’s guidelines probably remained on paper in a majority of workplaces.

Importance of Policy

A deficiency of policies or poor policies to deal with sexual harassment at the workplace is not the issue, but non-adherence to the existing policies. In addition, there is a paucity of trained personnel to implement the policies and handle cases of workplace sexual harassment (Sharma 2010). Studies ascribe this to a lack of commitment on the part of company heads, who do not assign due importance to the issue of workplace sexual harassment on their organisational agendas.

The approach of the private sector to sexual harassment policies can be explained by drawing on Ravichandar (2010). There are five mental blocks that chief executive officers (CEOs) and managements face in implementing robust policies against sexual harassment. They can be summed as the five Ds – denial, dismissal, double up, delegation, and danger. It is seen that most companies live in a state of denial. They believe that sexual harassment does not exist in their organisation because there are no reported cases. They also believe that they are open enough, and any employee can openly report sexual harassment. Companies tend to dismiss the issue as unimportant because they do not want to give priority to it. Majumdar (2003) points out that the course adopted by companies is to ignore such complaints in the hope that everything will be forgotten and forgiven in due course, and in the belief that managements need not get involved in the “mess”. Many companies believe that there is no need for a separate committee or policy to deal with sexual harassment because the HR department will be able to handle the situation when the need arises and that the employee code of conduct will be adequate for this.

But it is important to understand that sexual harassment is a socio-legal issue surrounded by shame, stigma and confusion. A general code of conduct may not address the requirements and specifics of the issue. It is necessary that a special policy be formulated and institutionalised, which ensures empathetic response, sensitive handling, mature investigation, and prompt implementation of the recommendations made by the complaints committee on sexual harassment to the management. While there are strict policies followed globally to counter the problem, such policies are only slowly beginning to take shape in Indian companies (Ghosh, Puri and Dewan 2010). In the absence of service rules, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Rajya Sabha Secretariat 2011) underlines the necessity of a policy in private organisations that expresses zero tolerance to sexual harassment at the workplace and explains the provisions of the law in simple language with examples.

Human Resource Teams

It is important to look at the role of HR departments in preventing and dealing with complaints of sexual harassment. Daft (2009) says that global firms have to abide by local laws and regulations on wages, employment safety, consumer protection, and other such issues. The right to a healthy and safe work environment is the basic democratic right of all workers (Creighton 1984). Macdermott (1995) explains that this right is given expression through employers providing a work environment free from sexual harassment. HR teams within companies are primarily responsible for providing mechanisms to prevent, deter, and redress sexual harassment. They have a crucial role to perform when it comes to implementing an organisation’s policies on sexual harassment, diversity, and so on, and in facilitating resolution of complaints.

It is important that HR departments follow three steps that can effectively deal with the hazard of sexual harassment. One, the HR department, in coordination with the legal department, should issue a written policy on sexual harassment and discrimination in general. Two, this policy should express zero tolerance to sexual harassment at the workplace. Three, it should define sexual harassment, giving relevant examples of inappropriate behaviour, outline the procedure to redress complaints of sexual harassment, and emphasise that there will be no retaliation against complainants. A copy of the policy should be provided to every employee, especially new recruits at the time of induction training. The policy should be regularly reviewed to suit changing times. A senior officer of the HR department should monitor and evaluate implementation of the policy. This officer can function as a link between the HR department and the sexual harassment complaints committee of the company.

Managers and supervisors should be made aware of sexual harassment, and trained to recognise and prevent instances of it happening around them. Women employees have to be encouraged to not tolerate incidents of unwelcome behaviour at work and report them. HR departments need to make sure that all allegations of sexual harassment are enquired into at the earliest, making sure that the rights of the complainants and witnesses are safeguarded. Detailed and systematic records of interventions and enquiries have to be maintained by HR departments. Since these departments are key to maintaining discipline in companies, they should ensure that action is taken against those found guilty of committing sexual harassment, irrespective of their position.

The Way Forward

It is known that women in India look at formal complaints of sexual harassment as the last alternative because they do not want to be seen as challenging their employers or creating a disturbance in the organisation. Private organisations have to initiate a dialogue and discussion on policies against sexual harassment, taking sociocultural nuances into consideration. Adhering to the policies, and government agencies and industry confederations monitoring their implementation is the next step. It is mandatory for employers to remind employees that they will not tolerate sexual harassment by anyone.

The 2013 Act is the codification of the SC directions regarding sexual harassment at workplace. It recognises that every woman has a right to work with dignity and sexual harassment as violation of fundamental rights of working women. Therefore in accordance with the law, the private sector organisations need to clearly articulate their position by upholding their code of conduct to prevent and address sexual harassment at the workplace, and by having a transparent system for redressal. While companies are gradually taking and now legally mandated to take corporate social responsibilities seriously, there should be a focus on corporate responsibility towards employees and the need to provide them with a safe and harassment-free work environment.

THE HINDU-DAIRY EVENTS OF 2013

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US Withdraws Diplomat After India Expulsion Demand

The United States said Friday it was withdrawing a diplomat from India in hopes it would end a bitter dispute that started with the arrest and strip search of an Indian diplomat in New York.
Washington's announcement that it was complying with a demand from New Delhi for the expulsion of the U.S. official came hours after Devyani Khobragade, India's deputy consul general in New York, left the U.S.

Khobragade, 39, is accused of exploiting her Indian-born housekeeper and nanny, allegedly having her work more than 100 hours a week for low pay and lying about it on a visa form. Khobragade has maintained her innocence, and Indian officials have described her treatment as barbaric.
In an apparent compromise, she was indicted by a federal grand jury but also granted immunity that allowed her to leave the United States. Khobragade arrived in New Delhi on Friday, where she was met at the airport by her father and a sister.
"She just said, 'Papa, I love you,' and that's all. And she's happy to be back, her father, Uttam Khobragade, told reporters. Khobragade left the airport separately through an exit that is not accessible to the public.
Many believed that Khobragade's return to India would be enough to give both countries a way to save face. India, however, asked the United States on Friday to withdraw a diplomat from the U.S. Embassy in New Delhi, and the State Department said it was complying, although with "deep regret."
"We expect and hope that this will now come to closure, and the Indians will now take significant steps with us to improve our relationship and return it to a more constructive place," spokeswoman Jen Psaki told reporters in Washington.
Requesting the recall of a diplomat is a serious, and fairly unusual, move that sends a message to Washington that India's government doesn't accept the legitimacy of the court action in New York.
Given the strategic partnership between India and the U.S. and more than $100 billion in trade, any further escalation in the case would not be in the interest of either country, analysts said.
Psaki did not identify the U.S. diplomat but said it was the individual whose expulsion was sought by India. India's Foreign Ministry described the person as of the same rank as Khobragade and somehow involved in the case, the Press Trust of India news agency reported.
Much of India's outrage stems from the circumstances of Khobragade's arrest, which were seen as unnecessarily humiliating. Khobragade was picked up Dec. 13 and then strip-searched while in custody, which the U.S. Marshals say is common practice.
In India, the process was seen as a brutal affront to a middle-class, educated woman and a violation of courtesies afforded to diplomats the world over. The case has also led to complaints in India that the United States is not treating it like a powerful nation on equal footing with Washington.
"The case goes beyond the dignity of one diplomat," said Sreeram Chaulia, an international affairs expert at Jindal School of International Affairs in New Delhi. "India made its point, which is that you can't take India for granted."
India also unleashed a steady stream of retaliatory measures against U.S. diplomats. Some of the measures, such as preventing the American Center in New Delhi from screening movies, were seen by some observers as petty. But others raised alarm, including removing concrete traffic barriers around the U.S. Embassy and revoking diplomats' ID cards.
A visit to India next week by U.S. Energy Secretary Ernest Moniz has been canceled.
"It's a shame this came to the fore over one individual," said Lalit Mansingh, India's ambassador to the U.S. from 2001 to 2004. "It sends the message that we're touchy about personal integrity, rather than about issues of global importance."
Ties with the United States have chilled in recent years over several serious policy issues, including India's delays in enacting more business-friendly reforms and the U.S. National Security Agency's alleged spying on New Delhi and other foreign governments.
The U.S. charges against Khobragade will remain pending until she can be brought to court, either through a waiver of immunity or her return to the U.S. without immunity status, according to the office of U.S. Attorney Preet Bharara.
Khobragade's lawyer, Daniel Arshack, said his client was "pleased to be returning to her country."
"Her head is held high," he said. "She knows she has done no wrong and she looks forward to assuring that the truth is known."
The indictment paints a picture of Khobragade as a harsh employer who refused to allow her housekeeper, Sangeeta Richard, days off, even telling her "not to get sick because it was expensive."
U.S. prosecutors say Khobragade claimed to pay Richard $4,500 per month in order to obtain a visa for her. But they say Khobragade actually paid Richard $573 per month and often forced her to work more than 100 hours a week without a single full day off. The long hours meant Richard was earning $1.42 or less per hour, the indictment says.
After about six months of working for Khobragade, Richard fled and sought help from a nonprofit group that works with human trafficking victims because Khobragade refused to hand over her passport and allow her to return home, according to the indictment.
It also alleges that after the housekeeper fled, Khobragade and a relative tried to intimidate Richard's family in India by demanding they reveal Richard's whereabouts. Khobragade also launched a legal complaint against Richard in India.
In her first public comments, Richard said Thursday that she had planned to work for a few years in the U.S. to support her family and then return to India.
"I never thought that things would get so bad here, that I would work so much that I did not have time to sleep or eat or have time to myself," she said in a statement released by the anti-trafficking group Safe Horizon.
She said she tried to return to India but her request was denied.
"I would like to tell other domestic workers who are suffering as I did — you have rights and do not let anyone exploit you," said Richard, who has been vilified in India and accused of blackmailing her employer.
The issue of immunity has been a key aspect of the case. Federal officials initially argued that Khobragade's immunity was limited to acts performed in the exercise of consular functions. But on Thursday, the U.S. accepted India's request to accredit her to the United Nations, which confers broader immunity. It would have been almost unprecedented for the U.S. to deny such a request unless she posed a national security risk.
The United States then asked India to waive the newly granted immunity so it could prosecute Khobragade, but the Indians refused. As a result, the U.S. requested her to leave the U.S.
Psaki said the charges against Khobragade "are not wiped," and before her departure she was told she's not permitted to return to the United States except to submit to the jurisdiction of the court.
Khobragade's name would be placed in visa and immigration lookout systems to prevent the routine issuance of any future visa, and upon her departure a warrant may be issued for her arrest, Psaki added. But James Margolin, a spokesman for U.S. Attorney Preet Bharara, said the office cannot comment on whether a warrant will be issued.

Disabled by Lack of Political Will ,The government’s failure to table the Disabilities Bill in Parliament is unforgivable.

The government’s failure to table the Disabilities Bill in Parliament is unforgivable.

For the estimated 70 million disabled people in India, the government’s failure to table the Rights of Persons with Disabilities Bill in Parliament in the winter session was another act of cruel neglect and one that their representative organisations are gearing up to tackle. For the four years that it took for the bill to be drafted, disability rights’ advocacy groups and activists kept the pressure up. The approval of the draft bill by the union cabinet on 12 December 2013 raised their hopes only to be dashed. With general elections looming ahead and the uncertainty of how much legislative business will be conducted at the next session, these activists fear that their efforts would simply be washed away. Protests and agitations were held to demand that the bill should be taken up in the February 
session even as the disabled bitterly pointed out that politicians do not seem to count them as a valued vote bank.
The disabled in India are “invisible”, not to politicians alone; society at large disregards the disabled. Since they do not easily fit into the sociocultural expectations of what “normal” men and women should be like, the disabled are either to be pitied and dealt with charitably or shunned and ignored. To a certain extent, this attitude was challenged by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which was considered landmark legislation at the time. However, while this Act did go a small distance in ensuring greater acceptance of the rights of the disabled to employment, not only its implementation but also its scope left much to be desired. It relies too much on the state’s initiative in framing schemes for the disabled while emphasising their vulnerabilities rather than on enhancing their capabilities. It also leans heavily towards the medical approach, emphasising the physical disabilities and tending to view welfare measures as the solution. It is a familiar experience that most government schemes aimed at a particular section of society suffer from lack of coordination and dovetailing of the efforts of the various agencies at work. Another area that needs attention is the one to do with the socio-economic vulnerabilities of the parents/guardians/caregivers of the disabled.
A number of crucial areas are also out of the 1995 Act’s ambit, like the problems faced by disabled women, disabled persons’ accessibility to cultural activities and sports, their preschool and higher education, the rights of the mentally ill (here too the women have special vulnerabilities) and many other nuanced rights that are taken for granted by the non-disabled. Disability rights’ groups wanted a comprehensive legislation that would be in keeping with the United Nations Convention on the Rights of Persons with Disabilities which India has ratified and which stresses fundamental rights. Also, this new legislation would have to be hinged on the non-negotiable rights approach rather than doling out concessions. The Ministry of Social Justice and Empowerment’s proposal to amend the 1995 Act came under fire and thus work began on drafting the new bill.
The 1995 Act however helped to bring the rights and problems of the disabled into public and media discourse and also helped different rights groups to band together on a common platform to a large extent. It must also be noted here that this law suffers from the usual problem of implementation which depends again to a great extent on a sensitive bureaucracy and committed politicians.
While looking at the general rights approach however, the gargantuan problems faced by the disabled in finding employment cannot be ignored. Recently, the Supreme Court (SC) ordered a minimum of 3% reservation for them in all central and state government jobs. The significance of the SC’s order lies in the fact that it quashed the central government’s 2005 office memorandum and claim that reservation for the disabled must be restricted to “identified” posts. The apex court ruled that the reservation must be on the basis of the total number of vacancies in a particular cadre rather than posts identified by the government. The SC pointed out that employment is an important feature of empowerment and inclusion of the disabled and it was lack of employment that forced this section to live in poverty and fail to contribute to family and community.
The Rights of Persons with Disabilities Bill 2012 has won the thumbs up on most counts since it has tried to do away with the shortcomings in the 1995 Act. However, there are a few aspects like that of inclusive education of the disabled and their employment in certain identified posts that have been flagged by some disability rights advocates as areas that need to be reworked. These and related issues need to be discussed widely once the bill is tabled in Parliament. Will the government ensure that the hopes and aspirations of the disabled are not dashed and the efforts of all those who have worked on the bill do not go in vain?

Madras High Court restrains green tribunal from initiating suo motu proceedings

Order given on public interest petition which says tribunal has been overstepping its jurisdiction

A recent court order has put a question mark on the powers of the National Green Tribunal (NGT) to take suo motu cognisance of environmental matters and initiating proceedings. The Madras High Court, in an order issued last week, restrained the tribunal from initiating such proceedings. It noted that according to the provisions of the National Green Tribunal Act, 2010, the tribunal has no jurisdiction to act suo motu. 

The order was given on a public interest petition by advocate P Sundararajan, contending that the Southern Zone of NGT has been over- stepping its jurisdiction and should be prohibited from doing so. “The NGT (Southern Zone) has been deliberating suo motu cases like those against Tamil Nadu, the Union of India and other public and private sector undertakings,” says the petitioner. 
Similar concerns on tribunal’s area of jurisdiction have been raised by the Union Ministry of Environment and Forests (MoEF) as well. Last year, the ministry on several occasions objected the exercise of such powers by the tribunal. An affidavit was also filed by the ministry before the Supreme Court on the matter. “The affidavit was withdrawn,” says an official, calling the reason for the move as “being complex”.
Currently, the central bench of the NGT is dealing suo motu with a number of cases that involve MoEF as well as state governments. For example, in a move against MoEF and Madhya Pradesh state authorities in May last year, the tribunal, on its own took up the matter of mining activities in Mandla district of the state. The main concern was that such activities were being carried out between two important national parks—Kanha National Park and Bandhavgarh National Park— and was affecting the wildlife habitat in the area. The tribunal also noted that owners of some of the mining leases have exceeded the production capacity in respect of the consent that was given to them. This, as indicated by the tribunal, shows the “irresponsible attitude” of administrative authorities. In another matter, a proceeding was initiated against the Delhi government on construction of roads in Asola Wildlife Sanctuary in the southern fringe of Delhi.

What the law states
Since its inception in 2010, NGT has been functioning on its mandate as a fast-track court for effective and expeditious disposal of cases relating to environmental protection and conservation in accordance with the principles of “sustainable development”, the “polluter pays” principle and the “precautionary principle”. Under the provisions of the NGT Act, there is no clear mention of the tribunal's mandate to take up matters on its own. It only says that the tribunal should act on grievances brought before it by others. 
According to lawyer Rahul Chowdhury, “the consideration of the power of NGT to act on its own is not black and white”. “Though the Act does not specifically mention the provision of suo motu cognisance, it does say that the tribunal can adopt its own procedure,” says Chowdhury. 
Section 19 of the Act notes that “subject to the provisions of the Act, the Tribunal shall have the power to regulate its own procedure. To what extent the Tribunal can exercise its suo motu power, therefore, remains a matter of legal interpretation. “However, given the controversy lately on this matter, any clarification on this regard needs to be settled by the Supreme Court,” adds Chowdhury.

Aircraft Carriers Do Not Offer a Strategic Panacea

Aircraft carriers, despite their great cost, have always been seen as strategically important by the Indian Navy due to what must be a misplaced sense of grandeur. Today, they are seen as vital for India to establish a naval presence as a world power, even as they have lost their signifi cance elsewhere.

Atul Bhardwaj (atul.beret@gmail.com) is ICSSR Senior Fellow at the Institute of Chinese Studies, Delhi.

On 21 February 1946, Mohandas Karamchand Gandhi wrote to G E B Abbey, private secretary to the viceroy, Archibald Wavell, suggesting that the small and medium sized vessels of the Royal Indian Navy (RIN) be converted for the purpose of fishing to provide an additional source of food supply to meet the food crisis in India.¹
This was the time when RIN mutiny was at its peak and vice admiral J H Godfrey, the flag officer commanding, RIN announced on the All India Radio that he would blow up the very navy he was commanding, if the striking ratings did not surrender. It was from such deep internal crisis that independent India’s navy emerged to launch its quest to be a blue water fleet. The direct influence of British officers (vice admiral S H Carlill was the last British Chief of the India Navy) on Indian Navy lasted till 1958. However, the intellectual imprints of British admiralty have ensured that the 21st century Indian Navy continues to rely on carrier battle groups (CBG) as the lynchpin of its maritime strategy.
The fading away of the old British aircraft carrier (INS Viraat likely to be decommissioned in 2018) and the commissioning of Russian made 44,570 tonne INS Vikramaditya (R33), and the likely induction of indigenously built 37,000- tonne INS Vikrant by 2018 represent a symbolic coming of age for the Indian Navy.² The twin carriers are expected to serve the navy for the next 40 years. The fleet may see a probable addition of another 65,000-tonne indigenous vessel after a gap of 10 years or so.
Despite the impressive numbers, one remains sceptical about the strategic thought behind the Indian Navy’s perspective planning. The only visible novelty in Indian naval thought is the use of postmodern symbolism to sell its modernisation plans to the public at large. Till a few years ago, the navigation track of a warship at sea was a highly guarded secret. In the age of transparency, the full electronic track of R33, from Russia to India, is now available on social media for the military-machine enthusiasts to speculate on all the minor and bold alterations of courses ordered by the command.
However, what is more crucial is that despite the decline in universal appeal of aircraft carriers, they continue to be the “queen ship” of the Indian Navy. Over the past half a century, besides laying the foundation of the Indian naval air arm, the two ex-British carriers have given India no tactical or strategic advantage in the Indian Ocean. In fact, the history of the aircraft carrier purchases by India clearly suggests that they were bought for considerations other than the strategic.
Misplaced Ambitions
In 1956, when India decided to buy the redundant British light fleet carrier HMS Hercules, there was neither any justification nor any reason for a nine-year-old infant nation to catapult itself to great power status by spending precious foreign exchange in times of extreme food shortages in the country.³ The cost of the old English carrier was close to one instalment (£50 million or Rs 65 crore) of what the British had promised to pay the Indians under the Indo-British sterling agreement.⁴ Interestingly, the Indian Navy’s aircraft carrier dreams were drawing funds from the Second Five-Year Plan that had envisaged a foreign exchange shortfall of Rs 11,000 million and was looking at raising Rs 1,000 million through new private foreign investment (Tyson 1956: 123).
The mid-1950s was the time when India was demanding the delinking of the rupee from the plummeting sterling and converting the £542 million Indian sterling reserves into dollars. Fearing damage to the international role of the sterling, the Bank of England and the Chancellor of the Exchequer pleaded with India to refrain from taking any drastic step. It is in this period of financial stress that both India and Britain initiated the Gnat fighter and aircraft carrier deals (Anderson 1999: 269).
Perhaps the only solace was that India was not the only third world nation on which an old aircraft carrier was being dumped. Debt-ridden nations – Argentina, Brazil and Thailand were the other gullible buyers in late 1950s and early 1960s.
India’s second aircraft carrier INS Viraat (ex-HMS Hermes) came along with British Sea Harrier aircraft. The deal for Harriers for the Indian Navy had started as early as 1970s (Krishnappa 1972: 1862, 63). In 1972, the British aerospace industry as well as their government pitched for the sale of 100 Sea Harriers to the Chinese (Crane 1981: 227-50). The Chinese who had a more urgent strategic requirement of getting Margaret Thatcher to sign an agreement for return of Hong Kong indulged the British till 1979 and finally refused to buy the Harriers. India had no substantial aim vis-à-vis Britain, yet, misplaced ambitions of grandeur led New Delhi to inadvertently pay for Thatcher’s extravagance in 1982 Falklands war through the purchase of Hermes and Harriers.
The third Indian carrier, INS Vikramaditya, was built by the Soviets towards the fag end of the Cold War. The dissolution of Soviet Union and the declining Russian stature in international politics in the Boris Yeltsin era made the Russian distaste for aircraft carriers even more pronounced. The Russians offered the raw platform to the Indians free of cost. The deal was signed with the Russians in 2004.
The Indian naval planners’ dogmatic allegiance to aircraft carriers has led to the refurbishment of Vikramaditya at a cost of $2.33 billion. Such spending is being justified in terms of India’s growing economic reach and the global gaze shifting to the Asia-Pacific region. According to Kaplan, of late, a greater interest is being evinced in the Indian Ocean Region (IOR).⁵ The European interest in IOR is being fuelled “as a result of what is perceived to be a growing mixture of shiny gunboats, new naval stations and geopolitical intrigue among countries of the IOR such as India, China, the United States and Iran” (Botez 2012: 369). Admiral (retd) Arun Prakash posits, “The surge of interest in the Indian IOR, of which India is a major geographical constituent, is
a new phenomenon.”⁶ Some Chinese scholars see “a progressively assertive India, setting the pace of the impending maritime rivalries among the great powers” (Yoshiyara 2012: 489). Contradicting the Chinese, former naval chief, admiral Sureesh Mehta feels that India “lacks strategic thinking in terms of maritime affairs, and also paucity of planning to counter Chinese moves in the IOR”.⁷ This growing mismatch between the Indian and Chinese perceptions of maritime security in the IOR is being aided and exploited by the America’s “Asia pivot” and their resolve to maintain their predominance in the region.
Current Debates
The current debates based on booming Indian economic might and intensification of competition with China are indicative of a fresh urge among the maritime strategists to resurrect Mahanian concepts of sea power and naval strategy (Mohan 2012). What is discernible in these trends is that there is a growing salience of strategic theories that are pushing India to look beyond their borders, and move into a global arena using their sea power. As a former naval officer says,
Earlier India’s naval strategy was focused on its ability to defend its territorial waters and the accompanying Exclusive Economic Zone. But the expansion of India’s maritime interests has seen an increase in the area of interest/influence extend`ing from Suez to South China Seas, instead of earlier Aden to Malacaa (Ghosh 2013).
The advocates of a Realist foreign policy see Indian Navy’s proactive operations in IOR and South China Sea as an instrument to achieve great power status for India (Pant 2012). The key tenets of Realist thought on Indian maritime security are: (1) maritime security is intrinsically linked to trade and commerce; (2) the impact of national sea power is best felt beyond the exclusive economic zone (EEZ); (3) the Indian Navy should be the net security provider in the IOR; (4) naval bases on foreign territory are a must to exercise sea power; and (5) the Indian Navy is the foremost instrument of Indian military diplomacy.
This seeming theoretical clarity is largely based on western scholarship on maritime affairs. Behind such formulations is a belief that the next stage of capitalist development in India and China will lead to imperialism – a competition for colonies. And since historically, force at sea has been a quintessential ingredient for any imperial powers, therefore, India must be a sea power to be a great power. Such delusions of grandeur lie behind the borrowed strategic themes as “out of area operations”, cooperative security at sea and the support they render to the concept of aircraft carrier as the bulwark of Indian naval strategy.
Subsidising the Imperium
However, what is normally overlooked is that theories which are applicable for truly great sea powers like the US may not fit the medium power requirements. The reach and range of American maritime assets places it in an absolutely different league. Despite this common knowledge, naval planners continue to insist on making Indian Navy a miniaturised version of the US navy. Fifty years ago, India paid to bail out England, and now, once again, India is digging deep into its pockets to sustain the dwindling fortunes of the falling American Empire.
In the next couple of decades, India is not likely to reach a stage where it would be able to exercise any maritime adventure on its own steam – position its CBG to launch its fighters for firing missiles on enemy land from the sea. Operating any aircraft carrier in close proximity to enemy territory enhances its vulnerability manifold. Establishing sea control even for a limited time of period is a difficult proposition in the age of sophisticated submarines and nano-technology. Therefore, the only option for the Indian Navy to use its costly carrier and its organic air is to operate under guidance and cover of the US military diplomacy, a proposition that would not only curtail strategic autonomy, but create conditions for the Indian fleet to be constantly in tow of the US fleet.
It is now well established that the US navy is shrinking under the burden of budget cuts. To obviate this difficulty, the US wants to broaden its military alliance base beyond the Atlantic. The game plan as enunciated by US military strategist Thomas Barnet is

We want to administer the global security system, not rule it. Like those ‘system administrators’ that keep the Internet up and running, America needs to play system administrator to the global security network. We need to keep globalisation up and running – to be, in effect, its bodyguard.
Rekindling the imperial desires of France, Japan and the Indian elite is part of the global security structure envisaged by the US.
The Indian strategy disregards facts and relies on theories that make it don an oversized jacket designed to fit an imperial power. Strategies for medium powers need not always rely on marrying military means with political objectives. The problem arises because conventional strategists are preoccupied with “use of force” and its calibration to achieve national objectives. This assumes that the state’s monopoly over means of violence is absolute and the only restraining factor is the adversary’s military strength. Therefore, adroit management of limited wars or threat of use of force is considered to be the lynchpin of strategy.
It is such thinking that makes costly platforms like aircraft carriers look attractive national weapons and disregard all military lessons that a medium power like India must learn from the experience of invaded nations. What prevented the sophisticated, modern military machines in Iraq and Libya from offering resistance against their invaders is a question that needs to be studied in greater
detail. Spending money on techniques to penetrate no-fly zones created by a big power and jamming the incoming missiles of an invading airpower should be the strategic imperative rather than splurging money on gaining a false sense of prestige.

Sexual Violence and the Death Penalty

The judgment in the 16 December Delhi rape case imposed the death penalty based upon the depravity of the offence and the demands of the “collective conscience of society”. On the other hand, in the Naroda Patiya judgment in the case of the rapes and murders of Muslims in this part of Gujarat, the court held that it cannot go down the route of giving the death penalty but preferred a graded system of life imprisonment based upon the degree of culpability of the different offenders. The latter is a new way of thinking about the logic of punishment. Justice Jyotsna Yagnik rejects the retributive logic and forces us to explore deeper questions about unthinkable violence, responsibility and punishment.

Arvind Narrain (arvind@altlawforum.org) is a lawyer with the Alternative Law Forum.

Impunity has been the order of the day when it comes to violent crimes against women in India. While cruelty enacted on the bodies of women is quotidian in its nature, what is exceptional is when this violence is brought before the court and the court recognises this violence and accounts for it. The judiciary has failed in numerous cases to ensure that those responsible for horrific crimes against women are brought to account. Emblematic of this deep and tragic failure is the Mathura rape case where the Supreme Court (SC) refused to even acknowledge the sexual violence inflicted on women’s bodies.
In the light of this history, the judgment in the Delhi rape (which occurred on 16 December 2012) case was exceptional in counteracting this impunity for crimes against women by finding the accused guilty.¹ How rare this conviction is emerges from the fact that the judge in the case, justice Yogesh Khanna, had only two conviction orders in the 203 cases of rape he had heard from 1 January 2009 to the day of the Delhi judgment.²
However, even as we acknowledge the importance of breaking the cycle of impunity for violent crimes against women, there remain troubling questions about how we punish the accused. Should the turn away from impunity mean that we embrace the death penalty for the accused? Are there ways in which we can acknowledge the gravity of the violation and think of a graded and nuanced punishment which takes seriously the violation without embracing the death penalty?
To think about the issue of punishment in the context of unimaginable violence this article will trace out the very important but relatively little studied judgment (compared to the Delhi rape judgment) delivered by justice Jyotsna Yagnik in a case involving the murder of 96 Muslims and the rape of Muslim women during the Gujarat pogrom. The judge in this case finally comes to the conclusion that for this crime of mass murder and rape, the 32 accused should be given different gradations of punishment ranging from imprisonment for 14 years to imprisonment for life. Is there something one can learn from the judgment in the Naroda Patiya case (as it is familiarly known) when it comes to thinking about the issue of both crime and its punishment?
Naroda Patiya Case 
On 28 February 2002, following the Godhra train incident, in the locality of Naroda Patiya, a violent mob systematically went about the task of murdering and maiming Muslims, raping Muslim women and destroying Muslim places of worship and Muslim houses. The orgy of violence which went on throughout the day was accomplished using deadly weapons and to the accompaniment of slogans which can be roughly translated into meaning “slaughter, cut, not a single miya should be able to survive, Jay Shri Ram”. The destruction concluded with the burning of members of the Muslim community (the living as well as the dead bodies were set aflame).
In the case finally before justice Yagnik (State of Gujarat vs Naresh Agarsinh Chara and Others),³ what was on trial were the series of incidents over the course of the day which resulted in the death of 96 Muslims, serious injuries to over 124 Muslims and the rape of Muslim women. What was also on trial was the criminal responsibility of Mayaben Kodnani and others for the conspiracy to commit the said offences. During the course of the trial 327 witnesses were examined and 2,392 documents were produced. The charge sheet listed offences ranging from conspiracy, murder, gang rape and causing grievous hurt to forming of unlawful assembly. The entire process of accessing justice right from filing the first information report (FIR) to ensuring a fair trial was an uphill struggle. In fact it was only the intervention of the SC which resulted in a relatively fair investigation. Because of all these difficulties the struggle of the victims of Naroda Patiya continued for 10 long years. It was only in August 2012 that a 1,969 page judgment was delivered by justice Yagnik convicting 32 people for the above mentioned offences.
The Judge’s Reasoning
Overcoming Procedural Hurdles: The substratum of the order’s reasoning is a keen awareness that this is an extraordinary case. The case had been sent back for fresh investigation by none other than the SC and the facts of the case had to do with an extraordinary breakdown of law and order. Considering this scenario the judge was inclined to look differently at procedural issues which can often stymie the struggle for justice.
First, with respect to the fact that investigation itself was faulty, the judge asserted the principle that “defective investigation, that too a deliberate defective investigation or deliberately kept loopholes are no ground for acquittal”. The judge constructed a mental picture of the days of the massacre and was able to empathise emotionally with the situation on 28 February 2002. The judge observed

the picture was so gloomy and sad that the complaints of the Muslims were not taken…It seems that the entire negligence, lighter attitude, carelessness in the investigation, insensitive attitude towards victims and their agonies etc. all was surely aimed at to see to it that at the end of the entire investigation if not all statements, then at least of majority witnesses should be saying that, ‘they do not know any member of the mob’.

Second, the crime was difficult to prove as there was no corpus delicti, i e, no body was recovered. This flows from the fact that integral to the crimes committed at Naroda Patiya was the throwing of persons (both dead and alive into the flames). As one eyewitness observed, “four women of the society came there who were giving kerosene to the men of the mob and those women were telling that ‘kill these people and then burn them’”. Taking this problem, which is often integral to the nature of mass crimes into account justice Yagnik by drawing on case law found that, “recovery of dead body is not necessary and it is held that conviction for murder does not necessarily depend upon Corpus Delicti being found”.
Third, justice Yagnik is also not inclined to give the benefit of the doubt to the accused though none of the deadly weapons used during the carnage were recovered by the police. As she succinctly put it, “The evidence shows that most of the accused were armed with a deadly weapon and are guilty of rioting being armed with a deadly weapon. The weapon is not actually recovered from them, but it is immaterial in the circumstances.”
Eyewitness Accounts as Basis of Conviction: The evidence which forms the heart of the judgment and is the basis of the convictions is really the eyewitness accounts. The eyewitnesses in this case have all suffered grievous loss with some of them actually seeing their family members being killed. The demeanour of eyewitnesses who have suffered so much trauma is observed by the court. It notes that

during the deposition many of the witnesses were finding it very difficult to control (rolling down) their tears (on their cheeks). They were eager to show their burnt limbs, their injured limbs and explain their losses to the Court. Many of the parent witnesses were unable to describe about the death of their children in the riot, they became so emotional that very often needed to be consoled and offered a glass of water to complete their deposition.

In the absence of almost all other forms of forensic evidence, recovery of weapons, etc, it is the eyewitness testimony and the reliance placed upon it by the judge, which forms the basis of the Naroda Patiya convictions.⁴ This judgment at its heart is really about the courageous testimonies of witnesses who persisted in their quest for justice despite overwhelming odds. The witnesses went ahead and testified to the almost unbearable loss they had suffered despite continuing intimidation. A particular example of this form of courageous truth telling is the testimony of prosecution witness (PW) 158 an extract of which is given below:

Here several people were cut and killed like entire family of Kudratbibi, Jadi khala, her two daughters-in-law, family of the PW, family of Kausharbanu, the family of maternal aunt of Kausharbanu, brother-in-law Salam of Gauri Appa, etc. At this time, his wife Zarina, daughter Fauzia, cousin Abdul Aziz, Haroon, Yunus, wife of Yunus jumped the wall, they were cordoned by the people, his wife was dragged by four men, she was attacked, her left hand was cut off by sword, her right hand was attacked by sword, her head was injured by sword, she was given hockey blow in her leg, her clothes were being pulled and torn off, not a single cloth remained on her body, she was made naked…
Even at the water tank, there was screaming of ‘kill-cut’, all the men of the mob have attacked different persons with the weapons in their hands, four women of the society came there who were giving kerosene to the men of the mob and those women were telling that ‘kill these people and then burn them’, he knew the four women since they were purchasing bakery products which he used to sell. Even he was also battered by acid bottles on his right hand, flesh came out from his right hand, he was also injured, he had also sustained injury on his hand, hip and head, the clamours of only ‘save, save and save’ were heard, the mob has killed his mother Abedabibi, sister Saidabanu, daughter of sister Saida – Gulnaaz, Jadi Khala, Kudratbibi, their family members by pouring kerosene and burning them…
They learnt about survivals of their relatives and met each other…
The witness felt that their house, their world were all ruined, he added that ‘even today I get knee jerks and I am shaken, upon remembering, I feel I am very upset and will undergo brain haemorrhage on remembering the occurrence of that day.’
His wife told him about the occurrence with her, they were so helpless that they had to shut their mouths, they were giving statement but, were not knowing as to what they were saying and what they were missing, the PW could not identify the four who dragged his wife…

The testimony speaks to a collective dimension of violence involving an orgy of murder and rape. The chilling aspect of the testimony emerges from the number of defenceless people who the witness testifies to having been killed. The violence is sexualised with the clothes of the women being pulled off thus leaving them naked. The deeply personal and humiliating sexual nature of the violence is hinted at with the witness saying that his “wife told him about the occurrence with her, they were so helpless that they had to shut their mouths”. The consequences of this almost overwhelming violence are literally world shattering as the witness notes that on remembering, “I feel I am very upset and will undergo brain haemorrhage on remembering the occurrence of that day”. It is on understanding the various dimensions of the violence as well as the impact on the victims that their incredible courage shines through again and again.
The Honesty of Extrajudicial Confession: The sting operation conducted by Ashish Ketan of Tehelkaresulted in videographed interviews with three of the accused in the Naroda Patiya case.⁵ All three interviews were treated as extrajudicial confessions under Section 24 of the Indian Evidence Act. The extrajudicial confessions were the other piece of evidence implicating both those making the confession as well as the other accused in the crimes committed at Naroda Patiya. They were cited in the judgment and need to be quoted in part as they throw light on numerous aspects of the crime.
The gist of the confession of Babu Bajrangi:

I shall not stop working for Hinduism until I die. I have personal notions about Hinduism. I have no fear even if I am hanged. Now, there won’t live any Muslims in India. The moment I saw corpses lying in Godhra, that very night I had decided and challenged that, ‘There would be four times more slaughter in PATIYA than that of GODHRA.’..I have two enemies, the Muslims and the Christians…
We slaughtered Muslims, Patiya is half kilometer away from my house. I and the local public were there to do the massacre at Patiya. If one would go to Godhra, one would be provoked and would determine to kill all the Muslims then and there. We retaliated at Patiya. In Patiya, we had secured the highest death toll.

The gist of the confession by one Suresh was:

If fruits (saying for girls) were lying, the hungry would eat it. In any case, she (the Muslim girl) was to be burnt hence somebody might have ate (eaten) the fruit.
Two to 4 rapes or may be more, might have been committed. Who would not eat fruit? In whatever number Muslims are killed, it is still less. I would not leave them. I have too much of rancor (malice) against them (Muslims). Even I had also raped one girl, who was daughter of a scrap man (one who is in business of scrap) – named Nasimo, she was fat. I raped her on roof and then thrown (threw) her from there. I smashed her, cut her to pieces like ‘achar’ (pickle).

These extrajudicial confessions describe in great detail what exactly the accused did that day. More importantly, they give us a direct insight into the minds of the accused. If there were doubts as to whether the rapes took place that day, it is set at rest by Suresh’s casual description of the act of rape and murder of a Muslim woman. Both confessions give chilling evidence of the deep motive underlying the killings. It is the hatred of the Muslim community which is at the root of the orgy of violence against them. The confessions give us a hint that the crime is not one which can be contained within ordinary criminal law as the intent is not only to murder or rape as the Indian Penal Code (IPC) describes it but rather the intention to eliminate the hated race, the Muslims. The crime executed by the mob is nothing less than what is referred to as the “crime of crimes”, i e, genocide.

Conspiracy to Commit Murder, Rioting, Unlawful Assembly, Inflict Grievous Hurt: In a large mob it would be close to impossible to prove the individual culpability of each of its members for every one of the offences committed. What serves to connect the various actions of the mob to one another legally is the law on conspiracy which requires proof that the various members of the mob had a prior agreement to do a series of illegal acts. If there is such a prior agreement then the various members of the mob are responsible for all the actions undertaken by anyone who is a part of the mob. The judge finds that there was indeed an agreement among the members of the mob. The finding is that

the accused were tremendously over charged with the idea to take revenge with the Muslim Community as a whole and they were totally out and had clear objects in their minds of doing away with maximum Muslims and to destroy, damage and demolish their religious place and property.

Rape in the Context of Mass Violence: The problem justice Yagnik faced regarding the offence of rape was that there was very little evidence left. The chilling extrajudicial confession of Suresh wherein he brags about having raped a woman called Nasimo and then cutting her into pieces provided an insight into the methods of the killers. The methodology was clearly rape followed by murder and burning. Hence, there was very little surviving evidence of the original crime. The only place where the evidence of the crime survived was in the memory of the perpetrators as well as that of the victim survivors. The undoing of impunity for rape was really the fact that Suresh felt impelled to boast about “raping Nasimo”.⁶ It is this extrajudicial confession which the judge uses to convict him of the crime.
Further, the history of mass crimes of the nature of that were perpetrated at Naroda Patiya is closely tied to sexual crimes. In fact mass crimes and sexual violence go hand in hand and we owe a debt of gratitude to justice Yagnik for making that connection clear through the appreciation of evidence. However nobody else was convicted of rape as she did not see the conspiracy hatched on 28 February 2002 as including the commission of the crime of rape. This is mystifying, particularly since she has very clearly delineated the acts of rape committed in the course of the murderous assault and quite clearly rape emerges as an integral part of the conspiracy both from the eyewitness testimonies as well as from the extrajudicial confessions.
However justice Yagnik was very clear that the crime of rape was committed. The eyewitness testimonies combined with the extrajudicial confession are sufficient to arrive at the conclusion. She understood the reason the victims wanted to testify about a crime in which the perpetrator was unknown. Zarina testifies to being “attacked by four men and that she was gang raped there. She testifies that four men had attacked on her with the help of sword, string of her petticoat was cut off and that a severe sword blow was given on her hand by the attackers. Having nakeded her, she was gang raped.” However Zarina was unable to identify the attackers. The judge concluded:

When PW-205 is not implicating any of the accused, it is clear that she does not have any other intention in her mind for narration of this incident, except ventilation of tremendous violation of her human right and constitutional right before the Court. The loud cries of such victim of crime if not heard by the system, it is mockery of justice. Here, it sounds quite fitting to record the deep concern of the Court about violation of human rights and constitutional rights of the victim who was subjected to gang rape.

In giving a dignified hearing to Zarina’s tale of horror and woe she understood a very deep aspect about justice. It is very important that the victims be heard and be believed. The pain of those who have suffered unbearable loss needs to be acknowledged. This acknowledgement of pain and loss can itself begin the process of healing.
The judge went on to order compensation for Zarina in full recognition that “no compensation in fact, is weighty enough to wipe out the permanent scar, effect and impact on the mind of the victim of the crime of gang rape”. Rather the compensation is a recognition that, “the Court is concerned with the commission of crime primarily since that is to take care of subsistence of Rule of Law. The international concern for the impact of sexual offences against women guide this Court that this victim needs to be compensated.”
The Judgment: Bringing a Sense of Closure? The brutality of the crimes can be deduced from the intentional killing, maiming, raping and then burning the victims. If the “iron rod” emerged as a symbol of brutality in the Delhi rape judgment, the phrase repeated by justice Yagnik, “grilled meat” to refer to the ruthless burning of Muslims both dead and alive symbolises the horror of Naroda Patiya. The other image which dominates and in fact emerged as the emblematic horror story of the Gujarat pogrom was the ripping apart of the stomach of the pregnant Kausar Bano by Babu Bajrangi.
Justice Yagnik was able to acknowledge the horror suffered by the residents of Naroda Patiya. She understood that the reason that even after 10 years the victims in spite of all odds were still pursuing the claim to justice was related to a deep-rooted need to right the balance. The wrong which was done had to be righted, before one could even attempt the process of closure. Justice Yagnik demonstrates a sensitivity in understanding the context of communal violence when she says, “The Court is not sitting in (an) Ivory Tower.” It is this appreciation of the context of a communal mass crime which ensures that defective and complicit investigation is not allowed to checkmate the quest for justice.
Even when there is no possibility for conviction she understood that victims needed to be heard. The process of empathetic hearing itself⁷ combined with the judgment brought about some measure of closure to a horrific chapter in Indian history.
What is apparent is also that the evidence before her far outstrips the narrow limits of the crimes defined in the IPC. The offences committed on that day were not only acts of murder and rape committed against individuals persons. In its deepest sense they were crimes committed with the avowed intent to eliminate in whole or in part the Muslim community in Naroda Patiya. As such the crime was really what is referred to as the “crime of crimes”, i e, genocide, a crime against a collectivity which is not recognised by Indian law.
Delhi Judgment and the Naroda Patiya One
The horrors of the Delhi 2012 and Gujarat 2002 are of two different orders. Yet there is no gainsaying that they both portray chilling and brutal violence inflicted with impunity upon the bodies of women. The question is, how did the court deal with the reality of extreme and outrageous acts when it comes to the question of awarding punishment?
The sentencing part of the judgment in the Delhi rape case gives the extreme penalty of death to all the five accused. The logic the judge adopts is that the extreme depravity of the offence brings it within the Bachan Singh formula of the rarest of the rare, and hence makes it a fit case for the award of the death penalty.⁸ The aggravating circumstances of this “brutal, grotesque, diabolical, [and] revolting” crime far outweigh the mitigating circumstances of “youth, socio-economic circumstances clean antecedents and reformative approach”.
Justice Khanna also articulates the need for awarding the highest penalty in terms of both deterrence and retribution:

These are the times when gruesome crimes against women have become rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the perpetrators of such crimes…
The subjecting of the prosecutrix to inhuman acts of torture before her death has not only shocked the collective conscience but calls for the withdrawal of the protective arm of the community around the convicts….Accordingly, the convicts be hanged by neck till they are dead.

In the sentencing part of the Naroda Patiya judgment the judge sees with immense clarity the harm that the accused have inflicted.

The 96 persons were killed mercilessly in a day and were reduced to grilled meat without any stimuli or provocation on their part. Among the deceased victims, there were women, old persons, helpless kids and even crippled person. About 125 victims have been found to have been victims of crime of hurt, grievous hurt, attempt to murder, etc. Among these helpless 125 persons there was even an infant aged 20 days.

The proved facts of murder and rape committed on the grounds of religion go beyond any ordinary crime of murder and rape. As justice Yagnik puts it:

In a country like ours, discrimination on the ground of religion or enmity or hatred for any religion is a taboo. Taking lives of persons just because those persons are having faith in another religion is bound to be dangerous and it strikes at the very root of the orderly secular society which the founding fathers of our Constitution dreamt of.

Then she goes on to dismiss the question of extenuating circumstances raised by the accused including family responsibilities, young age and lack of criminal antecedents. The judge observes,

Their submission for their family responsibilities, small kids, health of their spouse, they being the only breadwinner, etc, cannot be considered in absence of accessing their role based on the proved facts of the case. How it can out of the mind that the loud cries of the victims for the help and mercy if have not appealed to the heart, mind and soul of the accused, then, it itself is an important consideration. The proved fact reveals of throwing children in the flames of fire was the most shocking part….

The judge discusses the punishment of death penalty making two contradictory points, that the death penalty “serves the purpose of deterrence” and that death penalty “undermines human dignity”. The judge then concludes that,

In the facts of the case, when alternative to death penalty is available, it is better to embrace the same. There are ways to address this violent crime in a more constructive way in which precious lives were lost in a barbarous attack launched by the assailants.

Based upon this understanding she awards a graded punishment wherein Babu Bajrangi is given imprisonment for the rest of his natural life, Maya Kodnani is given imprisonment for 18 years, seven other accused are given a minimum sentence of 21 years and 22 other accused are given life imprisonment.
Rethinking Punishment?
The sentencing part of the Delhi rape judgment imposed the death penalty based upon the depravity of the offence and the demands of the so-called “collective conscience of society”. The sentencing part of the Naroda Patiya judgment did not minimise the offences committed and in fact found that in offences so serious there were no extenuating circumstances. Yet the court held that it cannot go down the route of giving death penalty but preferred a graded system of life imprisonment based upon the degree of culpability of the different offenders. The logic of the court was “there are ways to address this violent crime in a more constructive way in which precious lives were lost in a barbarous attack launched by the assailants”.
This call by justice Yagnik gestures towards a new way of thinking about the logic of punishment. She rejects the retributive logic implicit in the argument about the “collective conscience of society” and forces us to explore deeper questions about unthinkable violence, responsibility and punishment.
The call to address, “violent crime in a more constructive way” is most compelling in the context of the public outrage and response to the Delhi rape incident. While there was anger on the streets, there seemed to be very little space for mourning. Would a politics centred on a collective mourning have changed the way we responded to the Delhi rape incident? Could there have been a shift from the angry insistence on the death penalty, if we had collectively spent more time on grieving for the life that had been lost?
When the judgment was delivered what was on display was the idea of punishment as a festival. The call of death for the rapists was a cry for revenge and when it was answered by the judgment there almost seemed to be a sense that the sentiment of the people was sated.
The question of how the public sentiment in favour of revenge can pervert the idea of justice is raised most compellingly by Hannah Arendt. In her analysis of the trial of Eichmann, Arendt is alone in her discomfort with the staged production of Eichmann as a symbol of radical evil. In her understanding he was at most a cog in the wheel of the bureaucracy of death that was the Nazi apparatus. She also expresses strong discomfort with a show trial, in which the collective conscience of the Jewish people has to be appeased, regardless of what a true notion of justice may demand. “Justice [according to Arendt] demands seclusion and it permits sorrow rather than anger”.⁹

It is sorrow which is conspicuously absent in the Delhi rape judgment and which permeates the Naroda Patiya judgment. Arguably it is the judge who is moved by the pain of the victim who is able to craft the idea that we need to respond in a “more constructive way” to “violent crime”. The judge, who expresses shock and horror only, goes along with a sentiment based upon revenge for the horrors inflicted as is the case of the Delhi rape judgment. The judge who is moved by sorrow is unable to view the perpetrators as “subhuman” in spite of the horrors they have perpetrated whereas the judge who is moved by the public sentiment of anger very quickly ends up viewing the perpetrators solely within the lens of the “less than human”.
The relationship of emotion and feeling to the process of judging and what accounts for justice is an important question. Surely justice must not only be a balm for past wounds but equally a gesture towards the future? The aim of justice cannot be to put to death a group of perpetrators while allowing the sentiment of evil which led to the wrong to continue unchallenged?
By questioning the logic of death penalty, the objective is not to minimise the hurt and harm suffered by the victim of the 16 December rape. In fact the violent attacks on her should deepen our sensitivity to human suffering and broaden our ethical horizons. It should sensitise us to the equally brutal suffering of Soni Sori and the innumerable dalit and adivasi women who suffer such brutalities.
The idea of justice should take individual suffering seriously but equally justice should be future oriented and must make a moral commitment that what happened to one individual should not happen to anyone else similarly placed.