Overview:

India's Supreme Court is set to hear a plea to reverse the remission of 11 men's 2008 sentences for gang rape and murder in the 2002 Gujarat Riots. But can real justice ever be served in a case and context such as this?

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Christopher Hitchens was once asked to defend atheism from the charge of hopelessness, by a Christian who found comfort in the idea of a god who would remedy all earthly injustice after death. In answer, Hitchens spoke of Elisabeth Fritzl, who spent 24 years as her father’s captive, sexually abused and birthing children also trapped in their basement, to illustrate the moral depravity of suggesting that some transgressions could ever be set right.

It’s an argument that goes back at least to The Brothers Karamazov, with Ivan’s speech that no heaven is worth the admission-price of even a single tear from a frightened, abused child. But atheist/theist debate around “the problem of evil” can never move us forward, because recognizing the absence of a supernatural curative is only the beginning. Yes, it’s better to accept that most harm can never be fully remedied: that justice will always be incomplete. But how should this change our relationship to pursuing some measure of correction, while we can?

It’s a question that humanists of all stripes, religious and secular, have to contend with—because although religious folks might talk about a god in heaven healing all, they too pursue worldly justice for transgressions here and now. We all do.

Only, the world’s transgressions are myriad, and overlapping, and contextual—which means that, frequently, our pursuit of justice in one realm ends up clashing with the pursuit of justice in others. One realm gains, all too often, only at another’s cost.

Such is the lesson that one of India’s recent court rulings now brings us. In a season of many potent legal verdicts, and amid an increasingly fascistic cultural milieu, the state of Gujarat acted this August upon a May 13 Supreme Court order, and remitted sentences for 11 men sentenced to life imprisonment in 2008.

Was this a win for carceral justice reform, the likes of which strongly contests the value of life sentencing? Or a symbolic sanctioning of ethnically motivated violence, and a dog-whistle for greater state lenience toward similar crimes going forward?

Or both?

Is it possible to build a coherent humanist ethos around carceral reform, when faced with such complex hierarchies of injustice in the world?

The 2002 Gujarat riots, gang rape, and massacre

In 2002, when the current Indian prime minister, Narendra Modi, was in charge of the state of Gujarat, a brutal clash spiraled into months of ethnically motivated riots, killing thousands of Muslims and displacing hundreds of thousands more.

It started in late February, with a trainload of Hindus returning from pilgrimage to a spiritual site that had housed a mosque for centuries, until it was razed by Hindutva nationalists in 1992. At a station in Godhra, where many Muslims were working as vendors and had otherwise gathered along the platform, the train caught on fire amid heated confrontation, and 59 Hindu passengers were burned alive.

Modi and his cabinet quickly fanned the flames of anti-Muslim hatred in a few ways: by sanctioning the removal of these charred bodies to the most populous city in the state, to be paraded through its streets in protest; by calling the attack pre-planned, “a violent, one-sided, collective act by only one community”; and by gathering to organize retributive strategies then disseminated to and carried out by local police.

One of the most brutal events in the ensuing frenzy of hate crimes was the gang rape and mass murder of March 3, 2002, when a group of some 20 to 30 men, including 11 Brahmins with “good values”, set out with swords, sticks, and sickles, and slaughtered Muslims who had already fled their village amid the violence. When these men set themselves upon the family of 21-year-old, five-months-pregnant Bilkis Bano, they not only gang-raped her and killed her 3-year-old firstborn, but also gang-raped before killing her mother and cousin (who had just given birth two days before; the unnamed infant was slaughtered, too). They killed Bilkis’s two brothers, 11 and 13, and her sisters, barely 14 and 20. Two of her aunts, 35 and 40, were bludgeoned to death, as were her uncle, 55, and uncle-in-law, 50, along with his three daughters.

This is the pain that we humanists have to lean into: the knowledge that there is little room for individual rehabilitation in widely wounded societies, and that we are all dehumanized in its absence.

Of the larger throng, those aforementioned 11 men were convicted under multiple sections of the Indian Penal Code, for the murder of 14 people and multiple instances of gang rape and knowing rape against a pregnant person. Seven more were acquitted for lack of evidence, and another died in the course of proceedings.

But the crimes ran even deeper, because Gujarat government and police were complicit in covering up the massacre, which first saw brutalized bodies dumped in jungle pits, some never to be recovered. Among the accused were six police officers and a government doctor, and because of this state complicity and related death threats, the case was tried elsewhere, by a special court in Maharashtra. The Supreme Court had decided that Gujarat couldn’t be relied upon for just proceedings.

On top of the life sentences given to these 11 men in 2008, and upheld by the Bombay High Court in 2017, Bilkis also received an exemplary compensation in April 2019, for having lost almost her whole family on that horrific day.

Case closed, right?

On August 15, Gujarat’s government commuted the life sentences for all 11 men, granting them full release. The legal case for this remission has two parts to it:

In the Laxman Naskar case especially, India’s Supreme Court had established a range of factors for determining remission eligibility. These include how the original offense affected broader society, the likelihood of the crime being repeated, the convict’s potential for further criminal activity, the socioeconomic condition of their family, and if there was any greater purpose served by continued imprisonment.

But which court should weigh these factors? Remission is supposed to be decided by the “appropriate government”. However, this particular case was handled by two states: Gujarat, then Maharashtra. To which state was a convict now entitled to present a petition? That was the question put to the Supreme Court by one of the convicted men, when he asked to have remission considered under a 1992 policy in effect during the trial. Under that policy, it didn’t matter if the case had to be moved out of Gujarat, to proceed without further tampering. The state of Gujarat would remain the “appropriate government” to assess his risk to society now.

On May 13, the Supreme Court gave Gujarat license to consider the possibility of remission, and not just under the 1992 remission policy: also, because the case had both started and ended in Gujarat, after the trial concluded in Maharashtra.

To no one’s surprise, but certainly to many people’s anguish, a special committee formed in Gujarat (still a notoriously ethnically charged region with invested sitting authorities) unanimously granted remission to all 11 Hindu men convicted in the 2002 gang rape and massacre of a Muslim family. Since then, protests involving civil servants and average citizens alike have highlighted the dangerous precedent and “wide ramifications” set by this state-government decision.

To add to the legal complexity, the Supreme Court then assembled a bench in late August to hear a petition challenging Gujarat’s decision to remit sentencing. The Supreme Court’s argument? That there was an important nuance in its May 13 ruling, which only said that remission should be considered by Gujarat: not that the Supreme Court had granted permission for remission.

Vital semantics? Or a mere act of saving face, now that Gujarat’s actions have exacerbated societal wounds not only along ethnic-cleansing lines in an increasingly nationalist India, but also with respect to taking sexualized crimes seriously?

And will Supreme Court intervention now amount to anything resembling justice?

On one level, we’ll receive an answer soon enough, when Justices Ajay Rastogi and BV Nagarathna hear this new plea against the premature release of these 11 men. But one of Rastogi’s questions, posed in a related, late-August hearing, raises a much more complexly humanist theme:

“Merely because the act was horrific,” he asked, “is that sufficient to say remission is wrong? … Whatever they have committed, they have been convicted. The question is whether they are justified in considering remission. We are only concerned if remission was in the parameters of law.”

This same law, of course, notes that a key factor for remission involves societal impact, and whether or not ongoing incarceration is to society’s benefit. But is there room for individual rehabilitation in any of this? In a country still overwhelmingly stratified by ethnic hostilities? And if not, at what point would it become “okay” again to prioritize individual rehabilitation in the broader carceral equation?

Humanism in a world of overlapping injustices

Earlier this year, Norway’s greatest test of its progressive carceral system made the news again. At a January parole hearing, Anders Breivik, who killed 77 people and injured over 300 on July 22, 2011, in an attack against those he considered race traitors, demonstrated no remorse for his actions, and no transformation in his hateful views. Norway has a maximum sentence of 21 years for convicts, irrespective of their crimes, and prioritizes prison conditions intended to make reintegration into society after completed sentences as seamless as possible. In 2002, though, it modified its law to allow further time in prison, in five-year blocks, for cases in which release of a given prisoner was not in society’s best interests.

Across the Western world, the question of what prison is “for” raises similar tensions. For many, it’s meant to be retributive: a brutal consequence, either to terrorize someone into “flying straight” after release, or to punish them until death. Others think that a brutal carceral system is also a deterrent, even though US state statistics demonstrate no connection between having a death penalty and reducing rates of death-penalty-eligible crimes like homicide.

Norway’s model recognizes, conversely, that a person removed from society for their offenses will almost always be reintroduced to society after completing their sentence. But in what form? How can we truly restore a society harmed by any given person, if their long term rehabilitation isn’t part of the overall healing process?

This is a policy question we might assume Western countries have more room to explore than others. And yet, Western carceral reform advocates also struggle to build political capital around a different approach to state-delivered justice. In the case of sexualized crimes, this issue is especially challenging, because sex crimes tend to be taken less seriously at every stage of the judicial process. As such, even though the rare few offenders who get sentenced remain as human as the rest of us, and as likely to be released into society again before they die, it’s not easy to advocate for rehabilitation-first reforms without being seen as a “rape apologist”, or similar.

Easy or not, though, what we do with our worst offenders remains an issue that humanists cannot overlook, when trying to envision a more just world for all.

In the case of India, though, that issue of carceral justice is complicated precisely by the fact that the rest of society has not been restored or rehabilitated since those 11 men were first convicted and given life sentences for their now-twenty-year-old crimes. Rather, since the 2002 Gujarat Riots, the world they were released into has become one of increased nationalist hostilities. The chance of more mob violence, and more weaponized sexual attacks and full-on massacres, remains chillingly high.

At this point, then, whatever the Supreme Court ultimately decides, a powder-keg was lit by Gujarat’s initial decision to release these men. If it reverses the remission, Hindutva nationalists will treat the decision as further proof of Muslim tyranny over the Hindu-dominant country. And if it upholds Gujarat’s legal authority to remit sentencing for such infamously violent crimes? Then Muslims (and women, more broadly) will have good reason to fear more emboldened attacks against them.

Meanwhile, what about the men themselves? What have they done, how have they changed (or not changed), in all their years in prison for these depraved acts of mob violence? Do they, like Breivik, hold to their original hatred? Have any of them come to feel remorse? Are they haunted by what they’ve done? Have they sought to better themselves, to lean into the best of what their religion actually teaches, to find those “good values” supposedly associated with their Brahmin heritage?

And would it even matter, if they have?

This is the pain that we humanists have to lean into: the knowledge that there is little room for individual rehabilitation in widely wounded societies, and that we are all dehumanized in its absence. There will never be perfect justice in our lifetimes—but also, what little justice we can eke out while we’re here depends as much on whether our societies in general have the capacity for it, as on whether individual transgressors, and their victims, are ready to receive it.

Our humanism must be applied to reforming whole systems, then, if we’re ever to live in a world where individual agency, dignity, and growth have any relevance at all.

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GLOBAL HUMANIST SHOPTALK M L Clark is a Canadian writer by birth, now based in Medellín, Colombia, who publishes speculative fiction and humanist essays with a focus on imagining a more just world.