Women on Death Row: Death Penalty and Social Politics in the Context of Gendered Crimes

On 23 January 2020, while hearing the review petition filed by the Amroha death penalty convicts, a Supreme Court bench headed by the Chief Justice of India observed that “the courts punish the crime not the person^”[1] In the Amroha murder case, the accused, Shabnam and Salim, were convicted for killing seven members of Shabnam’s family in 2008. This included the strangling of a 10-month-old baby. The duo was given the death penalty by the Sessions Court in July 2010, and the sentence was confirmed by the Allahabad High Court in 2013. On 15 May 2015, the Supreme Court also upheld the death penalty. Significantly, within six days, death warrants were issued to the convicts. Shortly after on 27 May 2015, the apex court struck down the warrants as illegal since the convicts had not exhausted available remedies. The judgment became important, as it laid down the guidelines for the issuance of death warrants. As of now, the review judgment in the Shabnam and Salim case is still awaited. 

Gender and Crime

In light of the uproar that delays in the execution of the four convicts of the Nirbhaya death penalty case has witnessed, the Amroha case assumes significance. In the Amroha case, the counsel for the petitioners urged the apex court to consider the "good conduct of the two convicts" for commutation. The counsel argued that the two convicts have shown the possibility of reform and that this good conduct should be considered as “mitigating circumstance.” The government has petitioned the Supreme Court for a contraction in the time limit for last legal remedies, even while the judgment for the Nirbhaya case is awaited. Besides the importance of mitigating circumstances, a mandated provision in the Machhi Singh case (1983), the Amroha case also raises the question of gender and punishment as one of the convicts, Shabnam, is a woman. Although the total number of women death-row convicts is very small, it nonetheless is important, as no woman has been hanged in recent times. In 2006, the Supreme Court had awarded death penalty to two women, Renuka Shinde and Seema Gavit, for multiple murders of children in the 1990s. Eight years later, in 2014, their mercy petition was rejected. The question of inordinate delay is obvious as the two women were first sentenced to death penalty in 2001 by the trial court. Considering the case of women death row convicts, the relations between gender, crime, and punishment need to be examined to better understand the inefficacy of death penalty from a position of gender justice.

There is no denying that the crimes committed by both the duos were merciless and horrendous, and the objective of this write up is not to condone the nature of their crimes or to argue that they ought not to be punished. The question is do they deserve the death penalty? In the Shinde-Gavit case, after the President rejected the mercy petitions of the two sisters in 2014, Special Prosecutor Ujjwal Nikam told the press that the crimes committed were much more extensive, but that the prosecution could prove only a handful based on circumstantial evidence. However, he maintained the revelations were such that “it shocked the conscience of the country.” Time and again, the argument in favour of death penalty, in those “rarest of rare cases,” almost always hinge on the nature of the crime, which violates the collective conscience of the people.  In the present case, the apex court in its judgment observed that the accused showed no scruple in kidnapping and murdering the children, and that the people in the area “were completely horrified and they could not send their children even to school” (Renuka Bai alias Rinku alias Ratan and another v State of Maharashtra, 31 August 2006) This "horror" that society feels towards the crime was succinctly addressed in the Machhi Singh judgment, in which, the apex court argued that  the “rarest of rare cases,” are cases where the accused violates the principle of life, and shows ingratitude towards the community, such that the “collective conscience is so shocked that it will expect the holders of judicial power centre to inflict the death penalty” (Justice M P Thakkar in Machhi Singh and Others v State of Punjab 20 July 1983). While the law is meant to establish the chain of evidence leading to the crime, death penalty is awarded in only a few cases, where the collective conscience is shaken. In short, the nature of the punishment of death penalty is that it is meant to remind people that certain crimes cannot be punished with just incarceration. It requires weeding out the criminal. So, even while the apex court holds that courts punish the crime and not the criminal, as far as death penalty is concerned, the punishment is squarely aimed at the criminal on grounds of violation of  the collective conscience. Given the gravity that society accords to  such a punishment, it is only fair to judge whether the crime committed also stems from the norms that  society itself espouses. Both cases, Shinde–Gavit and Shabnam–Salim, illustrate the structural links between societal attitudes to women, and their commission of crimes.

Relations between gender and crime are deeply social, a view which the anti-abolitionist and pathological accounts miss and erase. It is impossible to separate not only the criminal from the crime, but also the societal reasons which influence the intention and commission of crime. Instead of viewing crimes as “exceptional” acts, it is necessary to understand that crimes are woven into the fabric of society, within which gender plays an important part. In a study on death penalty, the National Law University (NLU) (2016) demonstrated the socio-economic profile of death row prisoners based on interviews conducted with convicts and their families. What is strikingly evident is the "economic vulnerability" and the backward caste status of the majority of the prisoners, which was even observed by the late president A P J Abdul Kalam, who questioned the “social and economic bias” of death penalty.[2] The relations between poverty and crime are well-established and in the words of the former Supreme Court judge, Justice Markanday Katju, “The main cause for crime is poverty. As long as you have poverty, you’ll have crime”. The relation between death penalty and poverty is also clear from Justice Bhagwati’s dissenting judgment in the Bachan Singh case where he underscored the “class bias” in death sentences in which “it was largely the poor and the downtrodden who were victims of this extreme penalty” (Bachan Singh v State of Punjab, 8 August 1982: para 81). Importantly, the NLU report noted that all the 12 women prisoners on death row belong to “backward classes and religious minorities”. (Death Penalty India Report: Summary 2016, p 20) Both cases under study in this essay confirm the NLU findings as the Gavits belong to the Scheduled Tribe community of Maharashtra and Shabnam obviously belongs to a religious minority community. Within the context of poverty and crime, theorising female criminality presents an additional problem as crimes committed by women contradict their stereotypes of caregivers and nurturers. Noticeably, the patriarchal biases of the criminal justice system are evident in its treatment of the female offender. In its judgment on the Amroha case, the apex court made a series of observations, in which it stated that the “Indian legal system does not differentiate between a son and a daughter” and then it opined that in the modern era the daughter plays a “multifaceted and indispensable role in the family.” Examining Shabnam’s crime, the Court observed how she forgot the ties of love and duty towards the family under the influence of the “love and lust of her paramour” (Shabnam vs State of Uttar Pradesh, 15 May 2015: p 33)

The Shinde-Gavit Case

Consider the Shinde-Gavit case in which there were four accused: a mother, her two daughters, and one son-in-law. The mother died in custody in 1997, while charges against Kiran Shinde were dropped when he was relegated as  an approver. Finally, the two sisters were given death penalty for kidnapping 13 children, and for murdering nine of them. Importantly, only five murders could be proved in Court. Considered to be a sensational case, information about the convicts is still quite inadequate. What is clear is that the women lived in poverty, which could  have formed a driving reason for the commission of crimes.

However, available facts also suggest that desertion also prompted Anjanabai, the mother and chief instigator, to initiate the vicious cycle of crime. Possibly engaged in sex trade before her marriage with a truck driver, Anjanabai had her first child, Seema, before her husband deserted her. She then married a retired soldier Mohan Gavit with whom she had her second daughter, Renuka. Marginalised by society in terms of caste, class, and identity, Anjanabai was a petty thief by profession and had scores of cases lodged against her in Pune. The sisters were conditioned in such an environment by their mother, that petty thefts were survival tactics for their lives. Like her mother, Renuka took to petty thieving and used her son, Ashish, for distracting prospective victims in crowded places. The year 1990 is supposed to be a turning point in the career of the women, as it was roughly the time when Anjanabai was deserted a second time, as Gavit went off to Nashik with another woman, and it was also the time when Renuka married Kiran Shinde, a tailor by profession. With her meagre resources and her daughters, Anjanabai followed her estranged husband to Nashik with the hope of reconciliation.

Since reconciliation was not feasible, Anjanabai returned to Pune with her family including her son-in-law, Shinde, who played an active role in kidnapping children, as he would drive the "getaway" car in which they would hide the stolen child. Between 1990 and 1996, the four of them kidnapped children from poor families—possibly so as not to arouse suspicion—and used them for committing crimes of petty theft, and then they murdered the children when they proved to be a liability. The law caught up with them, when they went to Nashik in 1996 to kidnap Gavit’s second child. His second wife had lodged a complaint against them, as her first child had also gone missing. After the arrest, the mother died during the course of the trial, in 1997, and Shinde turned an “approver.” The two sisters were then blamed for the crimes that the four had committed.

How just is the death penalty as a punishment in this instance? In asking this question, this argument does not presume that the sisters were not guilty. And, nor does one shirk from recognising that neither has shown much remorse, and have denied their role in the crime. But, if their collaborators either die, or become an “approver,” then why should they alone bear the brunt of such a punishment? The two-member bench of the apex court held that the nature of the crime “demonstrates the depravity of the mind” of the convicts, and that they had been “a menace to society”. The apex court also stated that the crimes were not committed under any compulsion, but that “they took it very casually and killed all these children, least bothering about their lives or agony of their parents.” But, it can be argued that the sister’s depravity and “casualness” were equally linked to the mother and the husband. In fact, it cannot be denied that patriarchal power relations were one of the key factors in shaping the manner in which they committed their crimes. This can even be seen in the course of the investigation, when the husband turned approver.  

The Amroha Case

The Amroha case is even more telling. The crimes committed by the accused in this case seem to be a direct result of the social hostility that Shabham’s relationship with Salim face, owing to class and sect hierarchies. She belonged to a landowning family and worked as a schoolteacher, and he was a daily wage labourer. Shabnam was pregnant when the crime was committed, and it was clearly a brutal situational act steeped in familial fear, as Shabnam was a Saifi Muslim while Salim was a Pathan. In a country where honour killings are still prevalent, Shabnam and Salim’s inter-biradari relations was a cause for familial hostility. Unlike the hardened nature of the Shinde-Gavit crimes, Shabnam had no criminal record before killing her family members. More importantly, it was Shabnam who stood rooted at the site and cried for help, and her weak alibi did not convince the police. Shortly after their arrests, it is said that the two fell out in Court, and blamed each other. Later that year, Shabnam delivered their baby in jail and raised him for seven years, after which she gave him away to a journalist-cum-college friend who adopted the child through the Child Welfare Committee.

 At the time when the Supreme Court confirmed the death penalty in 2015, neighbours in Bawankhedi village discussed why the crime took place. (Indian Express, 7 June 2015) They agreed that Shabnam could not have simply run away with Salim as he had no money. Shabnam had a double Master of Arts whilst he was a class VI dropout. Since the judgment is awaited, it is difficult to opine on its outcome. However, the "nature of the crime" has clearly played a significant role in determining the quantum of punishment, as all three courts have reiterated death penalty. The awarding of the sentence suggests that such a punishment is based on a one-eyed-justice principle, which cannot comprehend that the fault of the crime lies as much in society as with the criminals.

Locating Crimes on a Larger Spectrum

The relation between crime and gender in society is not pre-given, and each case of “exceptional” crime demonstrates the volatile fault-lines within society.  It therefore becomes necessary to reconsider the magnitude of death penalty as a punishment, as it makes the crime into an “exception,” and it punishes the crime with an equally irrevocable punishment, death. Furthermore, the death penalty is, by and large, accompanied with inordinate delays, owing to which the convicts are forced to go through, as the Shinde-Gavit sisters have claimed, “immense mental torture, emotional and physical agony,” not knowing when their time will be up. The sisters have insisted that their agony has been intensified by acts of separation, when Renuka was sent to Nagpur jail, and after Renuka’s four children were placed in a remand home. Now, on death row for nearly two decades, it is worth asking, why hang them? It is well established that the death penalty is not a deterrent (Amnesty International). The statistics for crimes against children are only on the rise. According to the RTI, in Mumbai, between 2018 and 2019, a total of 3,041 cases of kidnapping of young boys and girls was reported by the Mumbai police and the NCRB data for 2016–17 shows country-wide jump of 20% in crimes against children (India Today, 1 August 2019).

When the Supreme Court had stayed the death warrants of Shabnam and Saleem on 27 May 2015, on the grounds that they had not exhausted their legal remedies, newspapers reported that the village elders in Bawankheri were disappointed. The village Pradhan upheld the punishment and told a press reporter that Shabnam’s act had ‘defamed’ the village (Times of India, 25 May 2015). While the village elders speak authoritatively on the question of “honour”, they fail to recognise that Shabnam’s crime of multiple murders against her family members arose from those very conservative gender politics and practices which the village elders upheld. Given the iniquitous gender politics that is practiced in the name of honour, it is time to think about rehabilitative justice, not retributive punishment. If today, Shabnam can teach her fellow inmates how to read and write and Salim can busy himself in jail reading books, then there is a reason to believe that death penalty is not the desired end of these two. If we agree that the ultimate goal of punishment is reformation and rehabilitation, there is a need to relook at how this can be ensured through a thoughtful systemic approach. The death penalty eliminates the chance for offenders to redeem themselves. The very basis of rehabilitative justice lies in reconditioning the offender in terms of their self-respect, restoring the violated relationship between the criminal and society. Justice can be found only in the presence of reconciliation and not in the act of retribution. Inherent dignity and equal and inalienable rights of all members of the human family are the foundations of freedom, justice and peace in the world. These values cannot be found in violence, either in the crime or in capital punishment. Violence as a means to achieve or provide justice is both immoral and irrational.