analysis

Updated: May 06, 2017 12:54 IST

Roughly two decades ago one cold December morning, a caste Hindu militia surrounded a Dalit settlement in Bihar’s Laxmanpur Bathe. Armed with rifles, sickles and knives, they dragged out families of lower-caste peasants from their mud houses and hacked them to pieces -- 58 people were killed, the youngest victim was four.

Sixteen years after the massacre, the Patna high court acquitted all suspects citing insufficient evidence. An appeal is pending, but in the meanwhile, the sole sign of justice is a red-brick and clay structure in the middle of the village with the names of the victims.

Laxmanpur Bathe isn’t the only one. Earlier this month as the country’s eyes were focused on the Jaipur Literature Festival, the sole survivor of the 2006 Khairlanji massacre passed away. At the time of Bhaiyyalal Bhotmange’s death, cases against people accused of raping and murdering his wife and children was still pending before the Supreme Court.

The barbarity of these crimes mirrored that of the December 16, 2012, gang rape. What went missing was the outrage, the columns of protesters in the heart of the nation’s capital baying for an indistinct enemy’s blood, the tens of thousands of social media posts and hours of live broadcast.

Surekha Bhotmange wasn’t India’s daughter and her rape and murder didn’t shame the country. Neither did Bilkis Bano’s gang rape – for which the Bombay high court refused to award the death penalty two days ago -- triggering a “tsunami of shock” in the collective.

The death sentence to four convicts in the December 16 gang rape case on Friday was widely welcomed as a “historic judgment” that would act as a deterrent for mounting crimes against women. The SC itself called the crime devilish and diabolical that deserved the “rarest of the rare” punishment of death.

Except, it is increasingly clear that there was nothing rare about capital punishment – it is arbitrary and handed out with alarming regularity mostly to underprivileged communities.

India sentenced someone to death every 72 hours for the past decade, and three out of every four death row prisoner was a lower-caste or religious minority.

Higher courts also commuted the sentences of more than half of them, and actually acquitted another quarter, proving the fact that getting capital punishment was often a matter of one’s circumstances – whether one can afford quality legal representation, isn’t unfairly targeted by investigating agencies, doesn’t belong to underprivileged sections or have powerful enemies.

The vagaries of awarding the death penalty are also borne out by the personal preferences of judges – an analysis last year showed the chances of getting capital punishment swung from nearly half to zero in the Supreme Court, depending on which judge was hearing a case.

The doctrine of “rarest of rare” was introduced by the top court in 1980 but there’s no statutory definition – what is rare often depends on the facts of a case, brutality of the crime and history of the offenders. “Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty,” the top court had said.

But the mounting cases of death penalties show the test of collective conscience is often a thin veil for social biases to influence the course of justice.

Delhi was rocked by protests after the December 16 gang-rape, re-igniting the debate on crimes against women. ( Mohd Zakir/HT )

This is why the December 16 gang rape case damages our conscience – in the familiarity of the victim, the easy profiling of the convicts and the next-doorness of the crime. This is why there is little collective empathy for the scores of riot or caste massacre cases – the victims don’t look like the urban middle classes, or reside next to us. Surekha Bhotmange and Bilkis Bano come from communities many Indians reside uneasily with, and cannot imagine marching down the streets for.

The death penalty is a means for a society to take an easy way out of the complex issue of gender violence, and not question our attitudes and practices on gender that result in only a fraction of convictions in rape cases, or single digit convictions in atrocities cases.

This is why there is little murmur when allegations of human rights excesses surface in Manipur, Chhattisgarh or Kunan-Poshpora, but street protests for Munirka, where there is no nationalism to justify raping women. This isn’t about gender justice, it is about feeling outraged about the kind of people we care about.