Can we recognise our culpability in the crimes we condemn?
“I died the day my daughter died,” her mother Asha Devi declares, disconsolate and in tears. It is hard for most of us to even imagine her pain and loss. “If I am alive today, it is only in order to secure justice for my daughter. But when the boy who raped her so brutally walks free after just three years, I feel I have failed our daughter.” Her husband Badri Singh agrees. “We are small people,” he retorts. “We can never get justice. Crime has won and we have lost.”
Less than 200 kilometres away from the country’s capital, in a village near the small town of Islam Nagar in Uttar Pradesh, another mother – painfully thin, undernourished, her pallid face hidden behind a frayed shawl, squatting on the floor of their mud home in a bed of straw to keep warm – also weeps quietly. Uncomfortable with the intrusive media attention to which she is subjected – unaccustomed indeed to any attention – she speaks haltingly of her oldest son who she learnt was part of a gang of young men who violently raped a young woman, leading to her death and nationwide outrage.
“We hardly have any money to feed ourselves,” she said. “My oldest son is the man of the family. He should now take care of us, get his sisters married, and ensure we have some food to eat. But I don’t know if he will be able to come home.”
Between these two heart-rending narratives stands an India again bitterly and seemingly irreconcilably divided. An overwhelming majority of at least articulate middle-class public opinion in the country wants to see the boy hanged, punished in the same way as the other men who savagely raped the medical student in South Delhi in the winter of 2012. (In a readers poll conducted by the Hindustan Times asking whether the “December 16 juvenile” deserves another chance, 89% said he did not, and less than 9% felt he did). To let the young man walk free after three years of his detention appears to them a cruel and heartless denial of justice, not just to the family of the young woman who died from injuries in the rape in a hospital in Singapore on December 29, 2012, but to all women.
The Union Minister for Women and Child Development, Maneka Gandhi, makes a distinction between the law and what is just. She said that the young man was being freed because the law requires it, as he was a juvenile at the time of committing the crime. “I don’t know whether the justice has been served but certainly the law has been adhered to.” She went on: “Let us not confuse justice with the law. The law said he could only go to a children’s home…That’s the anomaly we are trying to correct. So he served his sentence and according to the law, he is coming out. And there is nothing we can do about it until or unless he commits another crime.”
Both the Delhi High Court and the Supreme Court have upheld the legality of the boy’s release, but have avoided affirming the justice of the requirements of the law. “We also share your concerns,” the Supreme Court bench said to the petitioner, “but we have to go by the law as it stands today. Any further detention would need a legislative sanction. The law is very clear that a juvenile cannot be detained beyond three years.”
The Juvenile Justice Act, before its amendment by Parliament on Tuesday, was based on the premise that it is unjust to hold a child or adolescent criminally responsible for crimes in the same way as adults, because the capacity for reasoning and emotional control of children and teenagers are not fully developed, they are prone to risk-taking and do not understand the full consequences of their actions. Further, if they are housed with adult criminals, there is much greater chance that they would be inducted into a world of crime.
The state must treat children in conflict with the law, according to this view, in the same way that a caring and firm parent would do, teaching the child right from wrong, punishing the child suitably, but allowing the child to reform and believing that the child deserves another chance in life. Once he walks out of detention, his criminal record should be destroyed and he should be supported to begin life again as a lawful and productive citizen.
The amendments passed in last days of a largely unproductive winter session of Parliament on December 22, with the Congress along with the ruling National Democratic Alliance siding with dominant middle-class opinion, change this premise in fundamental ways.
In particular, the radical amendments provide that in cases of heinous offences alleged to have been committed by a child above 16 years, the Juvenile Justice Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, his ability to understand the consequences of the offence and the circumstances in which he committed the offence (I say “he” because it is mostly boys who are charged under these provisions). It may recommend at the end of this enquiry whether the child should be treated under adult law.
But medical experts disagree. Shekar P Seshadri and Raghu N Mani, professors of child and adolescent psychiatry, NIMHANS, Bengaluru, write in a column in the Hindustan Times, that “identifying the frame of mind of an adolescent who is only alleged to have committed a heinous crime will merely result in an arbitrary ‘opinion’ lacking scientific validity”, and could lead to arbitrary opinions and fuel judicial decisions that could radically alter the course of a child’s life.
Also, children commit only 1.2% of all crimes or less, and many crimes registered as rape are actually filed by parents of girls who oppose consensual relationships of their minor girls, with boys often of disadvantaged castes, class and religion. The law will hurt disadvantaged children the most: 56% juveniles accused of crimes come from families with a maximum annual income of Rs 25,000, while 53% juveniles are either illiterate or educated till primary school.
‘India’s most hated’
However, even as the justice or otherwise of the old law and the new related to underage crime will continue to be debated outside Parliament, this does not affect the destinies of the youngest man who participated in the ferocious gang-rape of December 16, 2012. The debate regarding this man is about the possibility of his reforming. The dead girl’s father Badri Singh told Press Trust of India, “He may go out and commit another crime and if he does, it will be due to shortcomings on the government’s part.”
Minister Maneka Gandhi also advocated the need to keep a “close watch” on the youth. “We can’t just let him go and wait for him to do something else,” she said. The Bharatiya Janata Party’s Subramaniam Swamy, who filed the petition against his release, seems convinced that he cannot be reformed. In his petition, he states that the law does not provide for “vicious unregenerate convicted juveniles, who despite having undergone the reformation process for the maximum penalty of three years custody in a special home, continue to be a menace to the society.”
Part of the apprehension that he has not reformed rests with the initial police version after the sensational gang-rape that the boy was the “most brutal” among the six rapists, leading India Today in August 2013 to carry a cover story on him with the headline “India’s Most Hated”. It matters little that this version has been contradicted by the FIR in the case, the police charge-sheet, the signed statements of the victim and her friend, and the records of the Juvenile Justice Board; this appellation of the “most brutal” continues to attach to the youngest rapist.
On the other hand, there is little doubt that he did rape the woman, perhaps more than once. It was he, with a sing-song voice, who invited the two young people to enter the bus, and helped clean the bus after the couple was thrown off the bus. He may not have been the cruelest, but he did undoubtedly participate in the brutish crime.
Fears about the young man mounted further when Swamy wrote to Prime Minister Narendra Modi in July. Claiming that the rapist had also become a jihadi, he sought investigation and necessary protective steps. The Intelligence Bureau confirmed these fears, suggesting that he had got radicalised and indoctrinated after being housed in the same cabin as a Kashmiri youth charged with participating in the Delhi High Court attack of 2011. It claimed the youth had brainwashed the juvenile and motivated him to join jihad in Kashmir after his release from the welfare home. When questioned about the basis of their apprehensions, a senior Intelligence Bureau official is quoted as saying: “These are intelligence matters which cannot be shared. We had got information through our independent sources.”
These charges fed into many popular anxieties, revealing firstly the boy’s Muslim identity, and then on fears that dispossessed young Muslim men, especially when contacted by Kashmiris, are prone to get radicalised. It seemed we needed to fear the boy not only as one who is likely to go out and rape more women, but also join Islamist terrorist outfits.
Signs of reform
Once again, there was another discourse, pointing in quite the opposite direction, but rarely heard (and when noticed, most viciously attacked by trolls on social media). Welfare officers and counsellors at the correctional facility for young offenders in Majnu Ka Tila told the Hindustan Times that the “juvenile” was one of the home’s most disciplined young residents. He had turned religious, growing a beard and offering prayers five times a day. He observed the Ramzan fast, and cooked the iftar (evening meal to break Ramzan fast) for all the fasting boys in the facility. Cooking, they said, was his favourite pastime.
“He prepares [food] for other inmates,” said one person. “In fact, he has become a leader of those observing the fast, collecting their names every evening and asking them what they would like to eat. He is a very good cook.” Added another, “He is always there to give a final touch to dishes prepared by the kitchen staff. Inmates often demand food prepared by him.”
During his stay in the home, he also picked up tailoring and painting. Rama Lakshmi, reporting for the Washington Post last September, described the teenager spending “quiet hours painting in his room in the New Delhi correctional facility…His most recent painting shows a crowned young woman in a flowing, regal yellow and blue robe, looking into an ornate mirror on the wall. The painting is called ‘The Princess’. In another painting, the teenager depicts a group of village women wearing saris and dancing together in a pastoral setting. Others include renderings of camels, bird-nests and parks.”
Psychologist Shuchi Goel said of him, “He is certainly putting an extra effort to become acceptable to others. He takes a lot of pride in his painting.” Superintendent Lakra said to Lakshmi, “We have told the other boys not to call him ‘the 16 December boy’. We tell them to treat him like a friend, like a brother.”
Lakshmi continues in her report: “He prefers to watch movies, songs and soap operas on TV. He appears to be fond of the pigeons that fly into the courtyard and is able to recognise some of them. He also is learning to speak short sentences in English like ‘This is my painting’ and ‘I cooked something new today.’ Officials say he is a ‘quick learner’ and ‘smart’…The teenager has received opportunities inside the juvenile facility that he never got on the outside…”
Room for empathy?
In my book Looking Away: Inequality, Prejudice and Indifference in New India, I write of the public outrage that followed the brutal gang-rape of the young paramedical student as “a rare moment in the public life of the Indian middle class, when public empathy and solidarity were extensively on display. Unaffiliated young people marched the streets of the national capital in anguish and in rage… With her ordinary aspirations – to study to become a medical professional, to watch a film with her friend on that particular evening – she could have been my daughter, she could have been your sister or friend. Her savage brutalization and her meaningless loss became our personal tragedies. Many deeply shared the suffering of a woman whose name or face they did not know.”
But I go on to observe that that brief moment also reminded me of the limits to our empathy. I describe a multitude of other brutalized women and girls for whom we do not march on the streets, for whom we do not light candles, representing the frontiers of our middle-class empathy. However, I observe that the tallest barriers to our capacities for empathy are not related to the victims, but to the perpetrators of these terrible crimes. Are they also worthy of our compassion, I ask, our empathy – or at least a little understanding – even as we condemn their heinous acts?
Take this young man, still for many India’s most hated. At the age of 11, he became his family’s principal bread-earner, for which his mother sent him to work at an eatery in Delhi. This is not an unusual burden for young boys and men in the “other India” of those millions who are left further and further behind by India’s growth miracle, whose fathers collapse under the burden of struggles to keep their families alive in conditions of enormous dispossession, and mothers try valiantly battle to hold the households together in unimaginable want. This boy is the eldest of five siblings.
His father is an undiagnosed schizophrenic, often violent and absent through the boy’s childhood, today confined to the only string cot in their home. In a succession of jobs, as a dishwasher, cook helper, milk salesman, and bus driver helper, originally the boy sent home Rs 500 every month from Delhi, and then this tapered off, as presumably he fell into destructive adult company, of men who ultimately socialised and led him to the sadistic crime. Until after his arrest, his mother thought he was dead.
Reporters who flocked to their home after the crime, and now again after their son’s release, remark that their home is visibly the most impoverished, a two-room mud house with a plastic and thatch roof. His parents and four younger siblings today sometimes eats one meal a day, sometimes less. His mother often faints and is unable to do hard manual labour: years of malnourishment and her body is just giving up. His two teenaged sisters earn Rs 50 a day as farm labourers, on days they find work. On days they don’t, they beg for food to the neighbours.
Speaking about the conditions of this boy’s dispossessed, violent and unprotected childhood, I conclude in my book: “None of this is for a moment to justify their gruesome crimes. Nothing can. [But can we]… also recognise your and my culpability in the crimes of that cold winter night on the streets of Delhi on December 16, 2012, in the violence we foster by our wealth, our unapologetic consumption and our indifference.”
“He was a good boy till he lived here. Delhi made him a monster,” former village headman Nathu Ram said to a reporter. “He left the village when he was very young. He might even become a better person if he starts living here – we do not have a single history-sheeter here.”