Thursday, 30 December 2004

Sinners In Search of Saint


(This article is a travelogue regarding the writer’s experience of visiting St. Xaviers exposition at Goa in the year 2004)

            During the dusk of 2004, the sinners of the planet got an opportunity to depurate their sins by touching and osculating the relics of St. Francis Xavier. Me too a sinner wanted to see the remains of the saint and blatant belief of the world behind it for which I got carte blanche from my father when my 5th semester examination calorie was on its rising. It was a time when my days were sunk in exams but my dreams submerged in the Goan fantasies. After termination of the examination, with the expectation of tuning and turning myriad dreams into pragmatism I prepared for it and started counting down in the calendar thinking when December 27th will come- the day on which my friend Subeesh and I planned to leave for Goa for elucidation, experience and exhilaration.  

            Due to heavy scurry as the Christmas vacation was on, we didn’t have berth when we booked our ticket but on 27th Dec with the help of one of my friend Rajesh’s mom, E.Q. got cleared which I have applied on the same day and finally we got two berths in coach S 12 in the train Hapa Express. I entrained Coimbatore passenger and reached Shoranur Jn with my bag and baggage at 7:15 p.m. The schedule time of the Hapa Express was at 10:10 p.m. but it was announced that the train was running behind schedule and will be reaching at 10:45 p.m. After having my dinner from a near by vegetarian bistro I whiled away my boredom by beholding the busy passerby and passengers; staring the stars in the night firmament above and the junk strewn in the rail tracks below; by looking at my watch and watch looking at me. At last, train arrived before 11:00 p.m. in which Subeesh was there who had boarded from Ernakulam North with the extreme zeal and zest. That night was over and done with just by harkening the clamorous crying of a child and his mother’s lullaby in the lower berth, sending the innocent into the innocence of somnolence.

            The killer billow- Tsunami and its cataclysm had astounded the conscience of the people all over the world on 26th Dec, the day next to Christmas as a ‘Christmas gift of nature’. All the passengers of the train, some even forgetting to have their morning tea were engrossed in the headlines and photographs of the news paper about the unheard word- ‘Tsunami’; its anger and aftermath. With all these scenes on our eyeballs we had omelet, bread and biscuit as our breakfast to cease our appetite and later on got caught up with the discussion and dialogue about the horror of harbor waves with the co-passengers. We were a bit apprehensive regarding how far it was safe and sound to visit the beaches and whether there will be a wallop of wave in its gargantuan form deluging the coast of Goa.

            When the sun was directly above our cranium train reached Madgoan and we stepped down the platform of Madgoan with shrill thrills. The station was jam-packed as usual with swarm of tourists from diverse corners of the world with their respective sui generis subculture, style and statements. It was debut trip to Goa for Subeesh and for me second time. An attention-grabbing fact is, forg  style and structuresaculateness. nd me the first and last trip of the year 2004 was to Goa. Last time I came to an all India moot court competition held at Salgoacar College of Law but this time it’s with multifarious objectives ranging from enlightenment to enjoyment.

            With looking around and carrying the luggage we headed on to G.T.D.C. and inquired about the faring, traveling and lodging. From there itself we booked a two bedded room in Madgao Residency and paid the peak-season-fare. Then by catching an auto rickshaw we moved on to Madgao Residency. After reaching there we had to wait for a while as the receptionist was busy entering into records; attending the phone calls and convincing the tourists. Later on, we entered our name, signature and seal in a cumbersome book as per the instruction of the receptionist and got the key of room no: 805. Soon after, one of the attendants escorted us to the room no: 805 showing earnestness and eagerness.

            We two relaxed and refreshed; changed our attire by watching the changing flips in the T.V. channels and were geared up in search of the route to Saint Xavier. Without knowing the direction to the destination Old Goa we set on with the idea that in Goa all road lead to church of Bom Jesus. We  by changing the T.805 and the phone calls and convincing the tourists.nami in the sinners were on the way discovering the gates of immaculateness and impeccability.

            After inquiring how to reach Old Goa, we boarded a bus and confirmed with the conductor the time it takes to reach the place of purity and publicity. The passengers sitting nearby were the natives of Goa who were quiet familiar with the places and few of them had visited the church more than two or three times. We planned to have our lunch after witnessing the relics of the saint. It was an idea of Subeesh that ‘church first and lunch later’ but later only we both felt that it was a decision for suffering and soreness. In the bus near to us there were three children standing with their parents sitting. The children were very smart and sweet testifying the age of innocence, benevolence and nonsense. Subeesh, a pugilist had a weakness for kids for which he told me to take the snap along with those smirking beings, possessing beautiful heart. We can’t get back into those smiling and sublime minutes but can smile by looking those captured moments.

            We reached Old Goa at 2:15 p.m. and zeroed in to the ultimate terminus with full potential. The colourful chunky crowd was moving in one direction and therefore we too tag along those thick sinners devoid of any hesitation and further question. There were policemen standing on the side of the road helping the ignorant populace how to go about; signaling with their hands the steering vehicles to take one side and setting up the barricades to segregate the confused-concourse thoroughfare in order to gain better momentum for man and machine.

            We entered the doorsill to the grandiose exposition. On both sides of the way were the marts exposing zillions of commodities for selling; five-and-dime stores with diminutive despicable wares and transitory hotels serving drinks from sprite to sugarcane juice and foods from cheese to Chinese. We had plans to shop lot of items but decided to do it while coming back after seeing the saint. But I purchased a gibus hat for sheltering my head from the humidity and also a stygian goggle for cooling effect to my ogles on the way. The way doesn’t comes to an end here it’s just the tip of the iceberg. In fact the way was crammed by the obstreperous canvassing and campaigning by the peddlers for selling of their articles; by the importunate vendors soliciting the tourists for their merchandise and by the emptor and shopper haggling with their negotiating adroitness.

            We had light munchies to cease the smoldering hungriness but it was zilch for me. With the famished abdomen we proceeded to link up with the unbelievable two mile serpentine swirling queue of the believers and non-believers of St. Francis Xavier. There was a mile long rope stockade close to the fence of the church starting from the entrance of the church gate till the end of the pale yellow fence inside to which was the dual queue with different sort of people from different parts of the world standing and moving with a gradual pace. Police personnel were holding and standing the rope barricade without permitting any persons neither to make a transit over it nor to get in between the queue. All the persons were footing by enduring the noonday humid despite of some holding parasol and some wearing panama. The snake like queue was crawling at a snail's pace but at times it acquired greater momentum which made every one pleased. We mingled with the people along with us. Four to five Malayalis were there standing next to us in the queue and they were a good time pass till we reached the footstep of the church. By cracking jokes, commenting dialogues and chanting melodious rhythms Subeesh and I spend the lackluster hours. The sun came down and our shadows became longer but the length of the train like queue was swelling and was creeping at the old rate. Many people with jaded anatomy were sitting on the other side of the road to take rest in the shade of the foliage and their family members and friends were standing in the queue. After regaining energy people come and join the line and their relatives went to take rest. The reciprocal process prolonged till the sun went down in between through the buildings and branches of the trees. Before the advent of the eventide flashes of camera started flicking here and there which reminded me to take few snaps of the tall creamy coloured church and the encircled flowery garden to it. A common scene was that some peoples by loosing their last vestige of patience were quarrelling with the policemen to enter into the queue as some people with tricks entered in between the line but all those attempts of argument were futile because the right to equality prevailed applying the rule of law equally to every one. The exception was the handicapped and the old people unable to walk. With the help of their attendant they were allowed to make an entry through another gate and make out the exposition. All and sundry was hoping at that moment to be a handicapped. In reality all had became handicapped by standing more than four hours in the queue.

            I perceived various images while standing in the file. It remains in my mind as a montage of miscellaneous matter. The populace consisted from hoi polloi to haute couture; from the occidental tourists to oriental townsmen and from the Caucasian skinned folk to the craggy haired Negroes. The gathered people spoke in their own mother tongue and some people chanted the divine rhythms of Jesus; they were having their own culture; adored in their unique costumes and pursued different religion but mostly they were Christians. In total, it could be said that it was an interaction of variety displaying vehemence and vibrancy.

            The crawling innumerable reached the gates of the Kirk dedicated to the infant Jesus and now a World Heritage Monument. All were permitted inside through a metal detector signifying the tight security involved. Then after that till the doorstep of the church, pandal was there and the authorities had provided seating arrangement to the side of the way which was a relief to the weary uncountable. With no time we reached the portal of the cathedral where we had to make an entry through another metal detector. On the passageway there was a caution written that ‘taking photographs were prohibited inside the church’. After discerning it I kept my digital camera inside my pant pocket. Despite the warning the bold ones where taking the snap. Breaking the law is too common every where especially in India whether it is in the church or in the court.

            In the long run the four hour long waiting came to an end. An amalgamation of relief and reverence was the reaction by seeing the inside structure of the cathedral. When I popped into the central room, it was dark and there was the light of few candles and dim bulbs. I didn’t understand why they had provided such a poor illumination for an impressive exposition. The holy dead relics of the St. Francis Xavier were kept in a silver casket on which tout le monde fingered and kissed. I too osculated the casket and made a careful observation within few seconds. For me relics of St. Xavier resembled an ochre coloured ligneous sculpture of a slender man clothed in shining raiment. My second look gave me a horrific notion and to state it ironically- I felt the relics of St. Xavier having a similarity with a saint in satanic physiognomy. It was like a frightening dead body having a xyloid skull with hollow eye socket, protruding defunct teeth, lengthy russet coloured fingernails and toenails and dead veins seen obviously in the osseous hands. I couldn’t comprehend the benefit of such an exposition. Why St. Francis Xavier? Answer is simple- its commercialization of religion; commercialization of St. Francis Xavier and what more than this in a commercialized, liberalized, privatized and globalised globe?   

            With lots of bamboozling questions encompassing dubious miasma, I came out through the egress. Besides the self asked questions there was escalating hunger which turned me blind as a bat. Subeesh and I hunted for food with full voracity. From a hotel just a stone's throw away, we had the food till we satiated our self. With the loaded tummy we set on for shopping from where by bargaining we purchased many things from wrist watch to wooden wallet; from refulgent trinket to remarkable T-shirts and from puppet to pottery.

            In a choked bus we traveled from Old Goa to the capital of Goa- Panjim. The city roads with zebra crossings were deserted in the jacket of nocturnal murkiness with hardly any stray dogs roaming hither and thither unlike in Palakkad- my place of nativity, where the nomadic canines are too common. The whole conurbation was under the lassitude of diurnal activities but the illumination bulbs all over shimmering in oomph especially in the night clubs and pubs. We made inquiries about the contiguous and chief pub in Panjim. A driver of auto rickshaw gave information about a pub named Tito’s situated near to the beach Calangute and said that there was no good pub nearby in Panjim other than Tito’s. Since Calangute was a bit remote and there was no bus available to go there at the nighttime, we hired the same auto rickshaw and hit the road to the said place expecting the unexpected. The vicinity was filled with full of foreigners and Indians less in numerals. The rickshaw wala took to the frontage of the pub Tito’s. The place was marvelous and mysterious. I was having a doubt that whether we had arrived in a heaven in hell or in a hell as heaven. After paying the ingress charge we were about to enter but there was an out-and-out checking by three security men of the pub. They comported to us like the Indian soldiers checking the Pakistanis before crossing the frontier. That was a picayune disgrace which we disregarded.

            People in modish apparel divulging lots of skin, smoldering cigarette in between their fingers and showing embroidered etiquette were chatting, shimmering and drinking varying from beer to brandy and having food from hamburger to frankfurter. It seemed like a breathing space where we get the concoction of euphoria and emancipation; where we discover motion of diverse obsessions forgetting the friction of stringent life and could satisfy the appetite for passion of shaking body, syncopated music and stimulating sex. That day, DJ Ivin who is considered as the best DJ in India was playing the music and VJ Tanya with her charismatic voice was compelling the crowd to dance on the dance floor rocking to the rhythm of energizing and enigmatic music. Most of the people were tangoing with perspiration oozing out from their face which glittered by the striking of the colourful brilliant laser lights. The weary ones moved to a side and took rest and after some while again join the blazing bunch. Apart from the dancing of the gorgeous multitude there was dance on the rostrum by three beauteous and voluptuous damsel dancers in between each hour for diversity in the divertissement. These mantras prolonged through out the night till 3:30 a. m. and finally it came to a finis. It was awesome in total.

            We two met lot of guys in Tito’s some became our friends. There was MTV VJ Nikhil to whom I went and shook hands. He liked my occult dance and enjoyed very much. Many more fans and foreigners of the nocturnal pleasure were present there without knowing how to spend their superfluous sterling under their placket. ‘Money is the ultimate of everything’- that was the attitude of the public who gathered in the pub. Is love no where in today’s world or hidden somewhere? We need it every where otherwise what are we with just a decaying framework craving currency and contentment.  

            Hiring a Maruti Omni we went from the corner of Calangute to the door of Margao Residency covering virtually 50 K.M. in the silence of Goan night. Since we both were exhausted and were drowsy, after reaching the rooms of our residency we soon went under the blanket of somnolence and waked up only at 11:00a.m., the next sunup. By 12:00 p.m. we were ready to leave and checked out from the hotel after having done all the formalities.

            We reached the Madgaon Railway Station by an Auto Rickshaw. The first thing we did was, we went and secured our luggage in the cloak room. After that we inquired about the train and train timings. Getting all sorts of information we both left to the beach Colva calling an auto rickshaw. It was just 6 K.M. from the station to Colva but the fare seemed unjust for us.  Bargaining with the auto rickshaw drivers was considered futile as the fare was fixed and no driver reduces single paisa. I had already been to Colva when I came last time to Goa. Colva beach has its own scenic splendor. It’s where the sand, sea and sky blend in enchanting natural harmony unspoiled by men. Cottage to the side of the beach, craft sailing in the Arabian Sea and canines straying hither and thither are the things which anyone could see if got a chance to visit here. The sands of the beach were having copious foot prints, sun in the sky was radiating with its piercing rays and the eyes of people visiting there were looking the rising tides in the sea. It was a true esthetics in its utmost extreme. We spend in the Colva beach itself till the sun came near to the far-flung horizon. We did some shopping from the agora of Colva beach for our classmates and neighbors, had bellyful chow and returned back in an auto rickshaw to the Madgaon Railway Station.

            I went to take the ticket. Fortunately there was no queue and hence got the ticket quickly. Announcement was there that our train Mangla Express which was scheduled to arrive at 7:30 p.m. was sprinting late by three hours.  Subeesh and I sat in a bench and passed the time by confabulating regarding the two days experience and extravaganza. All plans can’t be converted into practice. The things practiced may not be planned sometimes. Likewise, we were having lot of other plans but not all was made into practical reality which could be later made a subject matter for prolegomenon and polemics.

            Finally, Mangla Express rolled into the station at 11:00 p.m. There was an inconceivable scurry in the general coach but we both managed to get inside and caught seats. On the one hand people were sleeping on the rack meant for stowing luggage and on the other hand many people were standing paying the same fare. That was not fair for which there was furious conversation and later the sleeping persons were made to get up and give place for standing persons to sit. We climbed the rack and sat till the next dawn. I have never sat like that even for my examination but what to do, its all compulsion which has to be endured as we didn’t got berth in the sleeper coach due to the heavy rush. It was the first time in my life I am traveling in the general coach for more than 650 K.M. Lots of ‘first and last’ deeds and decisions were the part of this journey. Eventually, miles mitigated by, as the train trundled from station to station. In between one station Subeesh got down to take ticket from that station to Ernakulam as I had took the ticket from Madgaon to Shoranur for both. By the time Subeesh came after taking ticket the train left. When the next station came I got down and looked for Subeesh but I couldn’t find where he is. A sinner searching another sinner- Interesting, isn’t it? I was little tensed but my tension was released when next station arrived. Subeesh came smiling and described what has happened. When he missed the train he took a lift of a passerby scooter-man and caught the train by entering into the last coach. It seems like a fiction but it happened. Believe it.

            In due course, Shoranur Jn came. There was Rapthisagar Express about to leave from appened. believe h. rived. d  Shoranur Jn going via Palakkad. I was happy by seeing that otherwise I would have to wait for a long time for another train going to Palakkad. I boarded Rapthisagar Express which took off within minutes and I was looking and gesticulating with my hands at Subeesh, the last seconds with tears struck in the eyes. Now everything find a space in the layer of my memories; memories to conceive and cherish whenever I get time. 

            After reaching my home I made a sweet retrospection about the search. I felt like the search was incomplete. Something was missing somewhere. Right now I am in search of that ‘something’.

Monday, 1 November 2004

Judiciary -- A Murderer...!!


(This article was originally published in a law magazine The Bona fide’ brought out by Govt: Law College, Thrissur)

legal knifing of life

There is cache in every human being, a cataloging of cosmic coruscation in one and all which makes us believe that there is more to life than living, judging and justicing. Life is so prized and precious that no one has the right to take out ones life, be it a judge, jury or a janitor. Death penalty is the ultimate fiendish, savage and shameful sentence given to humans deemed as criminals by the state. This draconian death punishment violates ones right to life and is irrevocable making even more terrific and tragic if it inflicts on the immaculate and innocent.

History starry-eyed mirror the march of civilization from terrorism to humanism and the topography of death penalty delineate retreat from country after country. But our homeland which proffered Gautham Buddha who preached universal compassion to the world; Gandhi, the marvel of all times who fought for ahimsa and in a country where ‘political parties’ and persons alike advocate that not even a termite should be subject to torture, death penalty has not been terminated. We conceit ourselves claiming that we were the first people in the planet to lead a civilized life but we have not given up the barbaric practice of hanging convicted murders, until they are dead. A murder is a murder by whatever name you call it. We are still living like brutish barbarians and have not developed humanitarian character. From this it is obvious that our pretensions of justice are just a colossal hypocrisy and our shibboleth of sympathy is just a phony and facade compelling me to write that ‘we Indians are a throng of cheap boasters’. 

The cult of abolitionist nations of death penalty is amplifying. The Amnesty International opposes the death penalty as a violation of human rights, holding that it violates the right to life and is the ultimate cruel, callous and corrupting punishment. U.N. Commission of Human Rights expressed its conviction in way back in 1997 “that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights”. There are international abolitionist treaties which include the European Convention on Human Rights adopted by the council of Europe in 1982; the second Optional Protocol to the International Covenant on Civil and Political Rights adopted by the U.N. General Assembly in 1989; and the Protocol to the American Convention on Human Rights to Abolish Death Penalty, adopted by General Assembly of the Organization of the American States in 1990 which all aim at the abolition of the death penalty. The European Union which has abolished the death penalty has urged India to refrain from carrying out more executions. The strongest reason for the abolition of the death penalty is the fault of arbitrariness in sentencing judges. The decisions are discriminatory, subjective and arbitrary at all times. Our apex court has stated that it ought to be imposed in the “rarest of rare cases” which is a euphemism for judicial gamble. It postulates resistance to taking a life but persons like Nathuram Godse, Dhananjoy Chaterjee and Dara Singh will still hang in the hangman’s rope in future due to the sanction and sentence through the laws instrumentality. How can law through its instrumentality take a persons life? Law by itself is no answer to justice as the sublime instances of Socrates, Jesus and martyrs galore in the long history prove how justice failed and blind law triumphed.

The cultural pedigree of India, with Valmiki, the finest bard with a burglar past- and such examples of renovation from criminality to nobility are legion here and elsewhere. No one is a born criminal, the offender being often the victim of irrepressible stresses. The doer may be a jingoist, a revolutionary, a scrawny victim of a strong passion who, given enhanced milieu, may be a good denizen, a good administrator, a good spouse or even a great saint. He could be a transcendent spiritual star like shri Aurobindo, tried once for murder but by history’s kismet exonerated. The personal saga of an actor in a shocking murder, if considered, may bring laceration. He might have been tormented youngster, a battered orphan, a jobless starveling, a badgered brother, a wounded son, a catastrophic person hardened by community cruelty or rancorous justice, even a Hamlet or Parasurama. He might have been an angelic lad but thrown into Mafia Company or inducted into dopes and drugs by parental neglect or morally-mentally retarded or disordered. We must always have the brooding thought that there is a divinity in every man and that all can redeem from their sins if given chance catalyzed by the Jesus, Gautham and Gandhi compassionate philosophy. ‘Every saint has a past and every sinner a future’ strikes a note of reformative potential even in the most ghastly crime. This axiom is a vote against death and hope in life. In succinct, knifing the life legally is knifing the life immorally.

Why ‘nay’ to death penalty

Everything has reasons; the crying cadence of ‘no’ to the evil eyed death penalty has too considerable and credible reasons. The succeeding paragraphs testify why there must be a shouting protest against capital punishment and why we need to death sentence on death sentence.

The purpose of punishment is to douse criminal penchant, not the person who commits the crime. The jurisprudence and philosophy of penology says that soul of sentencing strategy in any civilized criminal justice system is to recuperate the soul of the sentencee and make him a useful member of society by the traditional trinity of theories namely retributive, deterrent and rehabilitative and sometimes a blended brew of all the three. If the capital punishment is abolished, they argue, people will not be safe and the graph of the murder will soar high but this is not a sound argument. At one time the pick pockets were also hanged in England and when the death sentence for pick pocketing was sought to be abolished same argument was advanced that no pocket will be safe. It is also pointed out that when a pickpocket was being hanged and the people had gathered to witnesses his execution, some pockets were being picked. Myriad men and women have been executed for the purpose of preventing crime, especially the crime of murder. Yet, study after study in diverse countries by sociologist and criminologist has failed to find convincing scientific evidence that the death penalty has any unique capacity to deter others from committing particular crimes.

J Bhagwati said :- " I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and 21 of the constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence". Behind and beyond the callousness of the degrading death punishment, it’s the overt and covert cruelty of torture which is more sad and somber. Like torture, an execution is an extreme physical and mental assault on a person already rendered helpless by government authorities. The cruelty of the death penalty is manifest not only in the execution but in the time spent under sentence of death, during which the prisoner is constantly contemplating his or her own death at the hands of the state. This cruelty cannot be vindicated, no matter how cruel the crime of which the prisoner has been convicted. If it is impermissible to cause grievous physical and mental harm to a prisoner by subjecting him or her to electric shocks and mock executions, how can it be permissible for public officials to attack not only the body or the mind, but the prisoner's very life? The cruelty of the death penalty extends beyond the prisoner to the prisoner's family, to the prison guards and to the officials who have to carry out an execution. Information from various parts of the world shows that the role of an executioner can be deeply disturbing, even traumatic. Judges, prosecutors and other officials may also experience difficult moral dilemmas if the roles they are required to play in administering the death penalty conflict with their own ethical views.

This is what the authors of the Indian Penal Code had to say about death as a punishment: “We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the state has been committed.” Cr.P.C. states that death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of Sec 354(3) of Cr.P.C. it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh’s Case and observed- “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” To decide whether a case falls under the category of rarest of rare case or not was completely left upon the courts discretion. However the manner of exercising the discretion has undergone various changes with the changing time and evolution of new principles through various cases. In the case of Mohemed Chaman, on the question of extent of judicial discretion, the court observed:  “Such standardization is well nigh impossible. Firstly degree of culpability cannot be measured in any case. Secondly criminal cases cannot be categorized, there being infinite, unpredictable and unforeseeable variations. Thirdly in such categorization, the sentencing procedure will cease to be judicial. And fourthly, such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions”. Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be said that such wide discretion has resulted into enormously varying judgments, which does not portray a good picture of the justice delivery system

Historically speaking, capital sentence perhaps has a class bias and colour bar, even as criminal law barks at both but bites the proletariat to defend the proprietariat, a reason which, incidentally, explains why corporate criminals including top executives who, by subtle processes, account for slow or sudden killing of large numbers by adulteration, smuggling, cornering, pollution and other invisible operations, are not on the wanted list and their offending operations which directly derive profit from mafia and white-collar crimes are not visited with death penalty, while relatively lesser delinquencies have, in statutory and forensic rhetoric, deserved the extreme penalty. In today’s India, penal law is just in the paper parchment with sunlit semantic and experience shows that death sentence is given to the accused from society’s deprived and destitute segment. It seems the death sentence is the privilege of the poor. One does not come across any case of the death penalty being inflicted on those who are better off and who can afford to engage skilled lawyers. Often the accused is defended by a novice who holds a legal aid brief. What Justice Douglas said in the US has application with even greater force in India. He said, “It is the poor, the sick, the ignorant, the powerless and hated who are executed.” 

Besides the inherent arbitrariness of the death penalty, Indian conditions for investigation of crimes and trial court procedures in homicide cases do not inspire confidence. Methods of investigation remain crude, archaic and unscientific. Conviction is largely based on oral evidence of witnesses. Witnesses are often motivated by caste, communal and factional factors. It is not uncommon for the police to fabricate a case for caste or communal reasons or for the enemies of the accused to fabricate a case against him. Prosecutors are not trained to shun irrelevant considerations. Such factors may create an apparent cast-iron prosecution case but the reality may be different — an innocent man may have been victim of a flawed or false prosecution. 

Also, any judgment of the court, howsoever well arrived at, cannot be totally infallible. Judges are human beings and can go astray. Some times death penalty is pronounced by a thin majority of one, other judges dissenting. Thus a human life can be snuffed out even erroneously. In the matter of capital sentence, the gravest factor is that the error is irreversible, since the sentencee is dispatched to that “undiscovered country from whose bourne no traveler returns”.

sentencing with judicial wisdom

The penal system and the sentencing process must become versatile gadget of reform of the individual and social defence. For this judicial training is imperative. Judicial conferences and sentencing workshops and institutional training for trail judges are directly necessary. Law schools giving special law courses in sentencing and correctional processes, exposure of judges to advanced psychological and neurological and other medical theories and practices relevant to justicing, and creation of Sentencing Boards with medical and other components are some of experiments which hold out promise for the future.

Judges must have sentencing options if they are to be functionally successful. Courts must have the power to order compensation and damages in appropriate cases, direct psychiatric or other treatment and investigation where necessary prescribing probation or conditional suspension of imprisonment coupled with the duty to report at meditation centers, healing clinics, training schools or community service stations( for alcoholic and drug addicts and drivers with substandard skills, for instances). In the case of juvenile offenders, special assistance from medical personnel becomes valuable. Borstal Schools, Attendance Centers, domiciliary visits, non-institutional treatment and the like hold out remedial prospects. Rescue Homes for women and other classified treatment possibilities, depending on their background and social environs, need bolder experiments so that the findings may be of benefits to the judiciary. Judges may insist, in their sentence directions, on prison education and special training of the prisoner as a member of the community. This latter is vital to any process of rehabilitation. Indeed, psychiatric treatment of prisoners may be individual therapy or group therapy, even sending them to special institutions, or back to the family with work obligations. 

Correction without conviction, probation and parole, obliteration of conviction upon release from prison are on the cards. The old theology in regard to penalties is wholly out-moded. To put all the sentencing eggs in the imprisonment basket is stupidity boundless. The very compulsion of advanced knowledge and higher awareness of correctional potential makes for the need of Law and Medicine to work together, blend their skills and make the art and science of sentencing a social defence project. Judicare and Medicare must go together. Judicare without Medicare is inadequate. Judicure without Medicure leaves the wound half-healed and therefore the Judicure and Medicure must work in symbiosis.

Crime is a disease and most criminals are a kind of psychic patients. Criminals are curable humans and are not irredeemably brutish. A king cobra which, by chronic habit, knows only to sting to death could be defanged and then what is the need of killing the cobra? Destruction of individuals can never be a virtuous act therefore the evil-doers cannot be done to death or decided to be a candidate of hangman’s rope rather there must be attempts to convert lock-up behind stone walls and iron bars into hospitals for healing the criminality. Medical humanism and clinical pragmatism, not traditional legal torture as magic healer, plus the non-negotiable character of the archetypal constitutional guarantees of human rights of sentencees is the New Testament of Penology essential to be written, redefined and reconsidered.

End word

A better world is one without legal knifing to life, given promising social changes. All the same, to sublimate savagery in personality or society is an elongated experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a job. Judicial activism can only be a signpost, a weathervane, no more. The penal direction in this jurisprudential journey points to life in prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangman’s rope. The direction must be correct, and then only the odyssey in the quest of nebulous truth in the abolition of lex talionis could be a success. 

The right to life must win and for that the most momentous task to play is for the judiciary with judges and justices sitting on the top of ivory tower pronouncing judgment and delivering justice in injustice way. Remember that we call ‘killing intentionally’ as a ‘murder’ and if so a judge pronouncing a verdict of death sentence could be called a ‘murderer’. It is corroborated to say that as long as the ‘seeming pure’ and ‘paramount as it is’ judiciary gives capital punishment, it is a blood thirsty murderer which offers humans as oblation to propitiate the Goddess of justice. 

There needs neither a lurid brush to draw in the backdrop nor acidic ink in the pen to write about the hanging of a human being still in every somber dawn by the legal process. One does not be a painter or a poet to get the picture of dying reality in an artistic or a poetic way. Truth speaks it by itself. Death too speaks for itself. But there must be someone to speak about the death and the victim of the legal death. Be a lawman or a layman, be an Indian or a person just visiting India, the flag of humane justice shall be hung half-mast by anyone, such is the symbolic reverence the land of Gandhi should pay to human life haltered up by the lethal law.

Friday, 1 October 2004

Do The Poor Get Justice In Our System?


(This essay was originally written for an All India Essay Competition)

The Commencement

When India became a swaraj from the shackles of British Raj, way back in 1947, ‘we the people’ made a rendezvous with destiny to refurbish the social order so as to guarantee to each person precious rights, equivalent opportunities and developmental justice without which the very pledge of the right to be human becomes a constitutional sanctimony, political opium and alluring judicial chimera. The haut monde and the elite sector of the country have, perhaps, had it in high-quality but those clusters of elfin creature, many millions who are imperceptible, suppressed and struggling for their subsistence had never discerned the colour of justice and sense the pleasure of evenhandedness. Social justice, in its semantic sweep and deliverance in its many dimensions, were the energetic clout of the struggle for independence but ‘the reality today’ is the mendicant and marginalized discovering their alleyway for living in dignity, integrity, identity and meeting indispensable wants. Is it an endless discovery which is not discovered hitherto and intricate to discover and discern?

The poor people usually endure from manifold micro cum macro forms of insecurity financially, physically and socially which upshots in their hungriness, homelessness and hideousness. They are discriminated against, subject to odious vehemence, heinous harassment, and impetuous intimidation by the mightiest, wealthiest and even by the state which is the highest. The people breathing under the cloud of susceptibility and breed in the castle of poverty usually enjoy, to a much lesser degree than others, respect for their human decorum, right to privacy, adequate clothing and participation in cultural life. These suppressed and oppressed chunks of the society are socially segregated lacking the basic capability to assume the appearance in public without ignominy and partake actively in the social, cultural and political life of their communities. Their voice is vanished amidst the nauseating noises of the creamy creed sodden in opulence and ostentation who dominate overlooking the dogma of democracy and ethics of egalitarianism. The cream of the crop including the polite less politicians, bureaucratic babus and even Samaritans instead of listening to the excruciating paroxysm of rejected and dejected quarter, tangos to the rhythm of moneyocratic men. The deprived and destitute segments turn desperate by knocking the door of the omega option ‘the judiciary’ for getting fair trail of justice due to its exorbitant entry and procrastination process making judiciary, a formidable redress machinery. Even if free legal aid is available to the poor, they may lack the necessary information and self-confidence to seek remedy from the courts. For whom does the judiciary give justice? For whom do the judge’s robes offer hope? For whom do the carillons of the constitution clang for? Human rights will metamorphose into a myth if inhuman blackguardism beset the macro sector of the masses. There is no doubt in that.

Today, India is wedged in a dialectical and veritable contradiction landing in a perilously dilemma. The expressions in the constitution created a sovereign secular socialist democratic republic. But reality is crowded with the crowd in perfect prejudice, quotidian quandary, monetary bankruptcy, omnipresent sleaze, social alienation and cultural wantonness. The Supreme Court has held that the values of the preamble are sacrosanct and form the basic structure of the paramount parchment, but the eloquent text by itself cannot alter the dismal state of the populace when influential-socialist cabals corner preeminence. How then can the rule of law transform the rule of life? The contradiction remains to reign on the broad canvas - Sky scrapers are there for the affluent strata while there is no hut for the indigent to lie and die; creamy layer rolls in Rolls Royce but the pot holed roads in the rural village engorges; well heeled have fast foods and cokes but the descamisado don’t even have cash to buy granule or water to gulp; obesity multiply in the opulent class on one hand and on the other the number of malnourished elevate in the flimsy fraction; rich reaches the Apollo for therapy whereas the downtrodden make arrangements to the necropolis. How far will this contradiction prevail under the Indian Welkin? Time is going to terminate and action to attenuate the augmenting lacuna is a necessity.  

Among the constellation of the constitutional clauses, we can see that article 39 A of the constitution of India furnishes that state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, endow with free legal aid, by appropriate legislation or schemes or in any other way, to ensure that prospect for securing justice are not denied to any citizen on account of economic or other disability. Article 14 and 22(1) also make it obligatory for the state to guarantee equality before law and a legal organism which sponsor justice on the ground of equivalent option to all. Legal aid endeavors to corroborate that constitutional pledge is fulfilled in the epistle and spirit and identical impartiality is made accessible to the demoralized, damaged and docile slice of the society. To give a statutory base to the legal aid programs through out the country on a homogeneous design, in 1987 Legal Service Authorities Act was enacted. But does the typography in the constitution suffice for abbreviate the sickening injustice done to the weaker section? Is the statutory semantics enough as a therapeutics to heal the scar of stigma contorting the visage of broken clan? Whether the poor get justice in our peninsula where Mahaveera, Mahatma and Mother Theresa bequeathed their noble values of caring the littlest, the lowest and the least?

why don’t they obtain?

Myriad reasons in direct and indirect can be attributed for why the marginalized sector don’t obtain relief or remedy for their grief and grievances. The prime nidus is abject poverty which is intractable, interminable and inherent in the Indian loam. Poverty stems from plethora of complex factors including the burgeoning population, towering unemployment integer, meager nutrition etc. Along with this the hostility against women – both domestic and outside adds to the human poverty.  Women in our male dominated society lives with fear of battery, molestation and rape which ends up in the saga of homicide, dowrycide, saticide and suicide. What about justice? Is it set-aside from all or justicide has happened?

Another thing is the characteristics of the bureaucracy in India which is too colossal, creeping, not adaptive to cope with changes etc. The system is also unaccountable, mechanical and with low motivation and morale. Many civil servants are deeply involved in partisan politics; they are preoccupied with it, penetrated by it and now participate individually and collectively in it. In the meanwhile to convince people and make their wish feasible they enter into a world of phenomenal corruption having demonic physiognomy. The concept of taking graft has changed stupendously as the time passed. In the olden days it was for need but nowadays it’s in greed. Corruption has influenced the roots and routes of the countries machinery becoming grease for the smooth lubrication of the system. The populace overlooks the scams and scandals with the same haste of its exposure devoid of doing anything needful for the reason that all are amidst presto life, bustling schedules and quantum quagmires. No one has spare time to ponder or act positively against all these menaces. This implies that we all are accomplice having a share in the crime against the injustice done on the poor human beings.

Forget the people of India, articulating on the politics and politicians we can see that the politics of the country has become divorced from public welfare and is more concerned with narrow sectarian interests. The communalization and criminalization of the politics has amplified the pathos and bathos. Today’s politicians live with the key factors like obtrusive hypocrisy, camouflage agenda, communal and caste consideration. They crusade with pontificating promise, concession enticement, void vocalization and visualization overlooking the norms of divine democracy and dreaming for the scepter in plutocracy. A new culture has emerged which can be best summarized as “lick up and kick below” and “rules are for fools”. That is, the elite echelons in government who treat themselves beyond law leave the throng under the billows of oblivion but satisfy and gratify those who are above them. The verity that half the politicians in some states are either criminals or have sturdy criminal nexus further compounds the snag. All these have compelled us to yell that the men who rule us are just a part of the problem, rather than the part of the solution.

The operation of the legal system, lamentably, promotes injustice and denies equal opportunity, which is catastrophic commentary on the judicial process in a country of indigents and illiterates, slum despondent and bucolic destitute, with an administration of justice designed to price out the poor from its portals. Despite the resounding rhetoric in constitutional parchments, equal protection of the laws and a just social order remains scriptural scheme for the have-not segments of society. India is a terra firma where panorama of diverse practice could be glimpsed like sati, child marriage, bride burning, deadly dowry ubiquity, gang rape, bonded labour, prostitution etc which are marring the human map. The robed brethren without a jaundiced eye are to catalyze the constitutional process and make social justice a fact not a fiction. But the truth is the judicial pyramid is untouchable and unapproachable for the penniless common India. The judiciary is on action with multifarious hearing, dilatory finality, inefficient delivery and appellate procrastination. In short, the judicial technology is not meeting the needs of the masses. The final resort as it is deemed has even came under the penumbra of devilish corruption. Whom can we trust and who all could be pardoned? Whatever, it is judicial terrorism instead of judicial activism if the judiciary by omission, commission or conservative tradition, fails in its mission as a radical fiduciary and redemptive instrumentality of the people. 

The colonial hangover of the notion the ‘rulers’ and ‘ruled’, ‘governors’ and ‘governed’, the ‘us’ and ‘they’ divide our oneness and even more ancient hangover of the intuition of the ‘superior’ and ‘inferior’, the ‘upper caste’ and ‘lower caste’, ‘bada lok’ and ‘chotta lok’ etc are the stumbling blocks in ensuring social justice. In concise, the mindset of the people is the mitigating factor mangling the malady.

Dolorous narratives

Reality is rebellious. Subsequent paragraphs are crammed with the somber laceration and assertion.

To begin with the Dalits- once a vibrant human collective, but suppressed for long centuries, now in the hunt for escape with endurance- who number nearly 200 million Indians and wallow in agrestic penury. In British India, they were called ‘depressed classes’, the Mahatma labeled them ‘Harijans’; the constitution term them ‘schedule caste and schedule tribe’. Change of nomenclature did not considerably metamorphose their harrowing living circumstance and so, these traumatized communities called themselves ‘Dalits’. Laws were made to alter their wretched status. But the ray and way of hope remains at the yonder due to the rerouting resources, corrupt practices, deprivation and denial of governmental schemes by the top echelons. There is lot of instances but to cite one from U.P. where a comprehensive study has been conducted by the LBS national academy of administration and the report says that the maximum benefit of the ‘tribal schemes’ has been misappropriated by the richer section of the society. Many communities have remained under the serfdom of the rich Brahmins and Thakur ‘tribals’ in that area. Won’t they get a chance to resurrect from the chronic crushed juncture?

Article 43 states that “the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the state shall endeavor to promote cottage industries on a individual or cooperative basis in rural areas”. But ‘The Truth’ is not approximating that. Workers in the slate mine in A.P. are governed by the Mines Act which does not specify minimum wages. On the other hand, the Minimum Wages Act of the state government does not apply to the mine workers. Therefore the workers there are virtually without any legislative protection. State itself is oblivious of protecting the privilege of poor.

In almost all states there is a government program to set up rehabilitated colonies for SC and ST in which electricity, water and other facilities are provided. In Kerala, such colonies are often set up in suburban areas away from the traditional habitation beneficiaries. The result is that the beneficiaries, who were mostly landless agricultural labours and tenants, find themselves uprooted from their previous occupations. In some cases, the landlords on whose lands they were tenants have used this scheme in getting them evicted from their holdings. In some other cases, where the tribal families were dependent on collection of forest products, they have now been ousted from their traditional homes in forest areas and have been given new houses in urban centers away from the previous places. Such transplantation often suits forest officials but is not in the interest of the poor as they have no alternate secured employment in their new surroundings. Thus the implementation of housing for the poor resulted in acute injustice to the poor populace.

Urban slum dwellers are not entitled to water or light connections unless they have a legal title of land. Since most of them are forced to be encroachers, they get caught up in a vicious cycle of degraded living conditions without minimal facilities. In P.G. Gupta V. State of Gujarat 1995 Supp (2) SCC 182) the S.C. stated that the right to residence and settlement is a fundamental right under Article 19(1) (e) and is considered to be inseparable and meaningful facet of right to life under Article 21. Pronouncements are made but the question is whether it’s made into practical.

In government we are confronted with dazzling dimensions of ostensibly omnipresent corruption. The scenario appears dreary and disappointing with cynicism, apathy and ennui on the part of the bureaucracy which is the ever increasing norm. The ordinary public seems condemned to suffer with fatalism or despair with odd jiffy of relief with the sporadic upright and fearless officer. The Official Secrets Act is used as a weapon and alibi by the bureaucracy to preserve opacity and puzzlement of its functioning, to shun accountability. Jails, risk homes for women, mental asylum, juvenile homes and all other custodial organization, often become hub of abuse of their inmates again mainly because of their lack of transparency.

Zillions of sad sagas are battling around us but it’s difficult to express every segment and sequence.


The therapy

To aid the poor is to aid ourselves. To give justice in its fullest extreme, we have to annihilate poverty from our land if not entirely. The subtraction of poverty is not an emergency action, but an ongoing process requiring time and thought.

Measures to promote the poors right of access to justice include the following: (1) introducing information campaigns, in slums and other areas where the poor dwell; (2) increasing the number of courts, tribunals and non-formal dispute resolution mechanism; (3) increasing the salary of judges and law enforcement personnel, especially in poor areas; (4) establishment of law clinics exclusive for poor; (5) extending legal aid for poor in both civil and criminal proceedings; (6) establishment training programs for judges, lawyers and law enforcement personnel on the right of the poor to non-discrimination; (7) eliminating corruption in the administration of justice; (8) easy finality and simpler proceedings.

Laws exist but many of them are shoddily implemented. Some of them need review and retrospection. There is a long way to go in terms of checking effective enforcement of the law and ensuring its reasonableness. In between the process we have to restore the credibility of the ‘steel frame’. To make more IAS officers stand up without their taste and temptation is by mounting the stability of their tenure, bringing transparency, curbing corruption, animating accountability to the people etc. But above all good governance is an inevitable desideratum to ensure sustainable human fruition where every one could get equal justice and has equal opportunity to hoist their voice and noise.

Sanguine swaddling

India is a land with hydro, herbal and human resources; our colossal yogic, ayurvedic, plural pharmacopic and diversely cultural heritages, insightful ideological convictions, towering cerebral erudition, our mythical stockpiles and philosophical profundity have engrossed the world from ancient times and even today, if we hold together we can hold the world in trepidation given the catalyst constituent of ‘do or die’ nationalism and chronological accomplishments. But we have lost faith in our inter-strength and the will to win. The fault, dear Indians, is not in our stars, but in us. Dr. Ambedkar pressing for the final passage of the constitutional bill wrote “independence is no doubt a matter of joy. But let us not forget that this independence has thrown us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves”. Therefore, arise, awake and unite and struggle for constitutional values so that all the Indians can realize and relish justice irrespective of their caste, colour, position or privilege. In succinct, we can create an enhanced paradise on the garden of India where aroma of justice spreads to all corners and corridors.