Terrifying implications of the SC's Staines Judgement

NB: I wrote this article in the aftermath of the January 2011 judgement by two Supreme Court judges on the murder of Graham Staines and his two sons in Orissa in 1998. The debate on religious questions is a secondary one. The first major point of my article is this: "The issue is not the rights and wrongs of conversion, which may be debated, but the citation of communal animus as a justification for murder."  Having made clear that the murder of Staines was a crime, whether or not he was indulging in objectionable activity, I argue that the grave implication of this judgement is "that communal animus is a mitigating (rather than exacerbating) factor in pre- meditated murder." 

My argument about the children is that they could not have been held responsible for activity offensive to Staines' detractors. (Arun Shourie, for example, has spent much ink showing what a bad chap Staines was). I'm not making a more forceful defence of their lives than of their father's life. I'm pointing to the doctrine of collective guilt: "the idea that the sins of the fathers are visited upon their sons", (it could be mothers and daughters for that matter). This doctrine, I argue, is one of the most noxious ideas in human history & has "found its way into every form of communal ideology." 

My article tries to convey the alarming fact that two SC judges believe in collective guilt (a hallmark of fascist politics), and that to their minds, communal animus reduces the gravity of homicide. It is such beliefs that made it so easy for the judges to ignore the fact that there were three victims in the incident, not one. It's because of their prejudice that they have been able to invisibilise the murders of Timothy and Philip, and merge it into a simple (to them) matter of 'conversion'. That's the relevance of the title of the article. Should not the hon'ble justices at the very least have recognised the murders of two children? 

This judgement is a crying shame and blot on Indian justice. But no one has noticed! 
This judgement is an invitation to communally-inspired murder, pure and simple; and this is the point that has been missed or glossed over by most thoughtful observers. It is a corruption of the very idea of justice (and this is what I mean when I say repeatedly that 'corruption' is the perversion from fidelity, and is not limited to monetary matters). It is a sad reflection that no human rights activists or democratically-minded persons or leftists have even recognised this aspect of the judgement, let alone ask the Hon'ble SC to amend its judgement so as to remove its sinister implications - DS

PS - Please note that the references to the rights and wrongs of conversion at the beginning of the article are in inverted commas, and are a citation from the judgement. 

The recent controversy over the Supreme Court's January 21 judgement on the Graham Staines murder is revealing. To begin with, Justices P. Sathasivam and B. S. Chauhan saw fit to make certain gratuitous remarks: "the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better." 

It's not clear whether they're saying there were such grounds for complaint against Staines (the Wadhwa Commission found "no extraordinary increase in the Christian population in Keonjhar district between 1991 and 1998"); or if the judges were merely saying that Dara Singh believed Staines to be converting people.

Implications: Be that as it may, following protests by Christian organisations and members of civil society, the judges modified their judgement on January 25. They deleted the reference to Dara Singh's intentions; and replaced it with the following: " more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced..." It also replaced the references to " interference in someone's belief by way of ' use of force', provocation..." etc., with the sentence " There is no justification for interfering in someone's religious belief by any means." Christian organisations welcomed the judges' decision to expunge or modify the two sentences, but the matter still carries grave implications.

The issue is not the rights and wrongs of conversion, which may be debated, but the citation of communal animus as a justification for murder. Undoubtedly some Christian evangelical groups use objectionable language and means to convert people. They can be countered by civic protest and legal proceedings - there are several laws regulating religious conversion. The issue before the Court was an act of pre- meditated murder, in which there were not one, but three victims. We are talking about the law, and section 302, IPC. The SC's modification remains tinged with sinister implications. It would appear that the change was made with regard to offended sentiment, rather than in recognition of a flawed argument.

While the decision to spare Dara Singh's life is a welcome one, the reasoning supplied by the honourable Justices is disturbing. They say, " there is no justification for interfering in someone's religious belief by any means." The reference to religion has been watered down, but remains. The implications are that: 

1/ Staines was indeed so interfering - for which there was no official complaint, nor reference in the Wadhwa Commission report; and 

2/ that communal animus is a mitigating ( rather than exacerbating) factor in pre- meditated murder.

Even more disturbing is the fact that the judges have rendered invisible (as regards the punishment meted out to the culprit) the deaths of two little boys, Timothy aged 6, and Philip, aged 10. Even if Graham Staines was indulging in objectionable activity, he did not deserve to be murdered for his sins. And even if the Staines' were Christian evangelists, their children could hardly be guilty of offending any law or anyone's religious sentiments. If the extenuating factors relating to conversion apply to the murder of Graham Staines, what factors could possibly attenuate the crime of burning alive two small boys? 

The judges have allowed their consciences to erase even the natural sympathy we feel about their terrible plight. Their comments - before and after their modification - are tantamount to blaming the victims for their fate. They violate the spirit of the Constitution and the norms of human decency; and they add weight to the normalisation of violence in the Indian polity.

Justice: Judges are not elected officials. The judicial conscience is separate from public belief insofar as it cannot be led by popular prejudice or stereotypical modes of thought. One such stereotype is manifested in the doctrine of collective guilt that may be found, for example, in the Biblical accusation that the blood of Christ lies upon the heads of all Jews till eternity. More generally, it vests in the idea that the sins of the fathers are visited upon their sons. This is one of the most noxious ideas in human history, and has found its way into every form of communal ideology. Early in 1985, I heard a justice of the Delhi High Court say something similar in response to the PUDR petition praying for the registration of cases in the matter of the carnage of Delhi's Sikh citizens in November 1984.

The judge dismissed the prayer, saying, as he did so, that " there was a background to the killings." He was alluding to the murder of Indira Gandhi by her Sikh bodyguards. By speaking thus, he was alluding to the idea of collective guilt. There is indeed a background to everything, but surely no thoughtful person, let alone a judge, can argue that a crime committed by a member of this or that religious group somehow taints every member of the criminal's community. For a judge to suggest that communal hatred diminishes the gravity of a heinous crime is a travesty of justice.

Communalism: The Supreme Court recently asked a minister to be temperate in his speech. Their own choice of words carries far more weight than that of any minister. Judges derive their authority from the seats they occupy, and society's trust in their fair- mindedness and wisdom. The Bench is superior to the persons who temporarily occupy it. That is why there is a constitutional provision for the impeachment of judges. It is within the realm of possibility that judges can commit contempt of court. The Staines' judgement comes close to exemplifying such contempt. The learned Justices could have endorsed the judgement of the High Court and left it at that. But they chose to act otherwise.

The central danger to the Indian polity is communalism, and it works via ideas and prejudice, not organisational affiliation. The Kandhamal cases, arising out of events initiated by the murder of Swami Lakshmanananda by Maoists in 2008, and followed by an orgy of collective retribution upon poor Christian villagers, will be adversely affected by this judgement. If our highest judges wittingly or otherwise provide barely-disguised legitimation for criminal deeds, our Constitution is doomed. Speaking out against this judgement is the least we can do to atone for the cruelty with which little Timothy and Philip were deprived of their innocent lives.

Article link at: 

Also see
The Abolition of truth - (on the 'parivar's celebration of Gandhis murder)

सत्य की हत्या
The Broken Middle (on the 30th anniversary of 1984)
The Savarkarist syntax
Sanjay Tickoo's Open Letter to Omar
Kashmir - 16 yrs on, Wandhama victims ...
Rahul Pandita - Violence in Kishtwar ...
Jamal Kidwai on Kashmir today
Kashmiri Pandits Stage Protest March in Srinagar
Balraj Puri (1928-2014) An Extraordinary Socialist Democrat
Nandini Sundar: No room for 'others'
Communal violence in Kishtwar - an analysis
Pak Parliament condemns Afzal Guru's execution
High Court of Jammu & Kashmir upholds Sanjay Tickoo's petition...
Superflous People - review of Rahul Pandita's 'Our Moon has blood clots'

The Broken Middle - my essay on the 30th anniversary of 1984
Shekhar Gupta - National Interest: Secularism is dead!

Very short list of examples of rule of law in India
The Assassination of Mahatma Gandhi
Academic research on Rushdie's literary work sabotaged by Deoband Ulema

More on justice in India, the death penalty, etc.
Our Fractured Conscience
Not enough evidence to prosecute Amit Shah? JTSA Statement

NB: I am adding a citation from an important book on Nazism written in the 1930's, Behemoth, The Structure and Practice of National SocialismNew York, republished 1963, p 27. The author was Franz Neumann. A pdf file may be read here: <http://www.unz.org/Pub/NeumannFranz-1942-00027DS. 
(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… ‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…

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