Crime and ‘just’ punishment

I have not seen the movie Dushman , starring Rajesh Khanna. But I do have a recollection of the story line from The Hindu review published back in 1972.

Rajesh Khanna is a truck driver who is fond of his nightly tipple before setting off on his road trips. Except that on one particular occasion, in addition to the usual quantity of alcohol, he takes a liking for the company of a courtesan, ‘Chamelibai’, who was performing at a road-side joint. He spends the night with her, in what seems like a grotesque variation of the Bacchanalian phrase, ‘‘one-for-the-road’’.

In his anxiety to make up for time lost, he over-speeds and fatally knocks down a farmer on the road. He is arrested and the judge sentences him to 100 years in prison. But rather than spend time in jail, the judge orders him to spend his term in the house of the deceased farmer and labour away in the victim’s farm. How he overcomes the hostility of the family through a variety of good deeds and, additionally, finds his lady love in the village belle, forms the rest of the story.

I daresay my knowledge of the law on sentencing is sketchy at best. I know, for instance, if you are a politician and arrested, pending investigation on some corruption charge, you could always complain of ‘chest pain’ and spend time in the cool comfort of a five-star hospital and count it as time spent in jail. That might come in handy at the time of actual conviction and sentencing that must follow, should corruption cases at all reach such a denouement.

Also, periods of sentence can be remitted for good conduct, or leave can be granted from serving time in prison for genuine reasons such as marriage or death in the family or, in more recent times, for the added reason that you have an aversion for the postal ballot but still want to exercise your democratic right as a citizen in a poll, and so on.

But could spending the entire prison time in the house of the victim’s family, even if the atmosphere is more hostile than what Ram Singh faced in the Tihar jail pending his prosecution in the Delhi gang rape victim’s case, count as prison term? I doubt it. However, that is part of the cinematic licence with the reality that every movie director is entitled to. That said, the film does make a far subtler point.

The criminal prosecution of a person accused of murder cannot be completely divorced from the livelihood concerns of the victim’s dependents. It makes the point that immediate members of the family must somehow be central to any decision on what constitutes just punishment.

The centrality of their concerns (it is another matter that in the movie itself, the family members are not consulted in what the judge felt was right redress) is not such an outlandish proposition as it may appear at first sight.

Some time back, the Pakistani police arrested one Raymond Davis, a US citizen, for the death of two Pakistanis. It is unclear even at this point whether they were civilians or intelligence operatives. Or whether Davis was a member of the US diplomatic staff or merely an employee of a private contractor engaged by the CIA. But no matter, Davis was eventually allowed to leave Pakistan without facing prosecution under the criminal law of that country on payment of monetary compensation for the victims’ family.

Responsibility of State

This was justified on the ground that such a course of action had the sanction of some aspect of Islamic jurisprudence (blood money). This is not peculiar to Islamic societies.

Indeed, tribal or pastoral societies have, in the past, recognised the rights of victim’s family members in the punishment equation for crimes. This is because stability and order among members of a tribe is always a given. In meting out punishments for transgressions by individual members, the tribe therefore operates on a framework of some overarching principle of equity rather than adhere to the notion of preservation of law and order.

The jurisprudence, as it has evolved in the West and which has been followed by most countries of the world, puts the state at the top of things in such matters. Why this should be so is easy to understand. The Western jurisprudence is a by-product of the mercantilist model of economic growth that it had adopted.

The enforcement of contracts and maintenance of law and order within the society (especially as international trade was a key component of this model) was the responsibility of the state.

In the event then, even petty quarrels and squabbles between two individuals, if they result in violence, must perforce lead to prosecution because such acts could cause damage to the fabric of law and order in the society.

Enforcing law and order

I am not saying that maintenance of law and order and enforcement of contracts in an expeditious manner are not important to economic growth. Indeed, there is much to be said for maintenance of law and order in vast tracts of Chhattisgarh, Jharkhand, Odisha, and so on, that are under threat of violence by Maoist groups. But not every act of violence need also be seen as a challenge to the state’s right of enforcement of law and order in the society, however felonious it might be at first sight.

FISHING FOR TROUBLE

Consider this situation. There is a fishing craft somewhere out in the high seas. It stops a merchant vessel bringing some cargo to the nearest port. The crew of the fishing vessel see that as an opportunity to do some grey market deals using fish as barter for Scotch whisky and Marlboro cigarettes. They try to catch the attention of those on board the vessel. There is a language barrier. But those on the fishing vessel would not be easily dissuaded.

They think commerce is still possible given time and some patient pursuit. Their fishing craft is quite fast and the cargo vessel makes very slow progress. So the fishing craft keeps going around the vessel in circles.

Somewhere along the way, a hostile intent is perceived and an awful tragedy in human lives ensues. Should we see any pragmatic settlement involving victims’ families as a violent blow to the cause of maintenance of law and order in the society? Possibly not.

If that seems completely untenable, at least here is an alternative. Why not declare all marine catch from the high seas as ‘deemed exports’, making them eligible for Customs duty credit under the Duty Entitlement Passbook Scheme? If nothing else, it would forestall the possibility of accidental death of fishermen seeking profits from some grey market deals in contraband cigarettes or alcohol.

This piece began with reference to a movie. Now, most movies carry a disclaimer to the effect that it is a work of art and that any resemblance to persons living or dead is purely coincidental.

Let me also enter a caveat that the scenario sketched out above is hypothetical and any resemblance to the case of Italian marines arrested in connection with the death of two fishermen off the Kerala coast is purely coincidental!

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