Jolly’s crime and punishment: Reflections on Koodathai killings
Jolly is a suspect for killing six people, including her husband, Roy Thomas, his parents, Tom Thomas, Annamma, and three other members of her extended family using cyanide. There are serious discussions among the police, legal pundits, criminologists and psychiatrist about nature, characteristics and intentions of crimes, supposed to be committed by Jolly. These discussions are based on the IPC, the CrPC, sociological theories, psychiatric findings and rational elucidations on Jolly’s behaviour, before and after the commitment of the six murders. Such deliberations lead to formulating ideas and practical schemes, founded on judgments of the high court and the apex court, forensic findings, established theories of criminal psychology, sociology, and victimology. Any decision taken, needed to be ethical, respecting human rights principles and respecting the dignity of the victims and the offender.
It is commonly accepted that murder is the unlawful killing of a person without any justification under the law to take away the life of a person. So, murder is manslaughter or culpable homicide that is killing of a human being by another human to cause the death of a person. But it challenges the police to establish the guilt of the person who caused the death. There are different types of proofs to determine the intention of the person who killed another person, such as direct and circumstantial evidence. A piece of evidence may be available in dying declaration, confession, the availability of weapons that might have been used, particular material found, evidence given by others, etc.
Nonetheless, the authenticity of the evidence depends on how far it can be used to prove the intention causing the death, and the ability to rational thinking, and intelligence to establish the guilt of the suspect in causing death, by the police and the prosecutor. The court must be satisfied beyond reasonable doubt the veracity of the proof presented by the prosecution. It is the Anglo-Saxon tradition, and the Indian Penal Code is grounded on that custom. The pronouncement of the judgment shows that the judge has given a fair consideration of the evidence provided by the prosecution that has facilitated to establish the guilt of the offender. If the trial fails to establish the guilt, the judge would consider them as grounds for rejecting the arguments proving the culpability of the suspect.
Whether Jolly has committed culpable homicide
Manslaughter or culpable homicide or unlawful homicide is not always murder. In murder, there exists mens rea, that is the guilty intention. The term homicide originated from the Latin word ‘homo’ meaning man, and ‘cide’ or ‘caedere’ meaning to cut or kill. Culpable homicide can also be killing for self-defence or in the establishment of law by a lawful authority or reason of mistake, or death caused by accident or misfortune, or while doing an act in good faith. In culpable homicide, which is murder, there is an intention to cause death. The Indian Penal Code, Section 299 deals with culpable homicide and Section 300 deals with culpable homicide that is murder.
Section 299 of IPC, culpable homicide has various circumstances, such as causing death, doing an act with the intention of causing death, the intention of death causing such bodily injury as is likely to cause death, with the knowledge that the act is expected to cause death, death caused of person other than intended, and death caused inadvertently without intention while doing an unlawful act. Consent of the victim is not a defence in culpable homicide. The police need to establish whether Jolly has committed manslaughter or culpable homicide that caused the death of Annamma, Tom, Roy, Mathew, Alphine and Sili. And the proofs must be based on the fact that there was the death of a person that Jolly has caused, and such death of a person comes under section 299 of the IPC, which is culpable homicide.
Section 302 deals with punishment for murder. It says that whoever commits murder shall be punished with death or sentence of imprisonment for life and also liable for fine. Section 304 of the IPC is on Abetment of suicide and Section 307 on Attempt to murder. To prove whether Jolly has committed culpable homicide, her action must come under Section 299 of the IPC, and by establishing her mens rea, Jolly’s action can be included in Section 300 of the IPC, that is murder. At this stage, the police need to prove the existence of her wrongful intention, which is guilt to cause death.
Whether to punish Jolly
Punishment serves many objectives, mainly to prevent future offences and acting as a deterrent to offenders from committing crimes again. Punishment may also act as a warning to persons who may be contemplating wrongdoings. Often punishment serves the purpose of retribution that is revenge. Many consider that retribution is necessary for reducing the quantity of crime and its intensity. In Saudi Arabi and Iran, public flogging, amputation of limbs, plucking of eyes, and beheading is commonly practised.
Prison sentence serves other purposes, such as imparting a convict, skills such as carpentry, weaving, food processing, cooking, farming as well as behavioural modifications. Provision of compensation, restitution, and community service are prevalent in European countries, the USA, Australia and New Zealand. Compensation to the victim or victim’s dependence by the State is because of the State’s failures to protect the victim from crime. Rehabilitation is the final stage of punishment. It is a process of sending back the offender in his/her community to lead a productive, self-supporting and law-abiding life. Probation, furlough, and parole, etc. are the methods used in the process of rehabilitation.
In Indian prisons, in certain situations, prisoners are kept in isolation or on-chain, due to various reasons. The ultimate punishment in India is the death penalty, also known as capital punishment. The death penalty is legally banned in all the counties in the European Union, in Canada, Australia, New Zealand, and many States in the USA. Whether a country is enlightened or not can be assessed from the system that country treats its offenders and the type and nature of punishment awarded to the offenders, especially those who are in its prisons. The prevalence of death penalty is a yardstick to know how far a country is civilized. Enlightened civilizations consider the death penalty as illogical and brutish, which serves no purpose and a total violation of human rights.
The concept of punishment
The philosophy of punishment is founded on the belief that a human being is rational, free and responsible for his/her actions. It presents particular moral challenges to individuals and society. Whether the State can impose punishments, especially cruel punishments and the death penalty, which are in violation of the Universal Declaration of Human Rights is arguable. Keeping a person in isolation in gaols is being practiced even in democracies. Whether it is morally and ethically permissible to keep a person in isolation or in a cage, sometimes for years together, is controversial. The stories of Monte Cristo and Papillon are fictionized examples of real accounts. Some of India’s freedom-fighters in the Andamans and other prisons were kept in isolation and subjected to harsh and cruel punishments. India has adopted my types of punishments from the British without questioning their credibility. Flogging and the use of ‘third-degree methods’ used by the police and the gaol authorities on the so-called Maoists and terrorists are questionable. It compels the civilized society to think whether it is morally and constitutionally permissible gunning down the ‘Maoists’ in Chhattisgarh, Odisha, Telangana, Andhra Pradesh, and Attapadi in Kerala by the police. The only difference between Saudi Arabia/Iran and India in this regard is that the former beheads its criminals, while the latter shoots the “Maoists” in public places. Some years ago, a prince was beheaded in Saudi Arabia with a sword made out of gold, but in India, the guns are made out of steel.
In Sweden, Norway, Finland, Denmark, and the Netherlands, the gaols are almost empty or non-existent. Iceland is a low-crime country. There have been years without a single homicide and 2018 being the most recent one. And when homicides occur, they are mostly non-culpable or unintentional ones. So, crime is related to the nature and type of governance in a country and its political system. Absence of political corruption, unemployment rates, availability of a basic income, equality, equal opportunity, freedom, respect for women and children, human dignity and justice, can positively indicate the rates of crime or absence of crime in a society. Wherever corruption and oppression thrive, crime flourishes. Political and religious immorality, which leads to human rights violations, superstitions, and ultra-nationalism are the fertile grounds for lynching, rape, arson, riots, tax evasion, corruption, and murder. The Scandinavian countries are the best examples of democracies, and non-corrupt governance, which practice en masse on a simple lifestyle based on science, honesty, friendship with nature, and the absence of religion.
Punishment involves the infliction of pain, as some believe that punishment annihilates crime. The Mesopotamian monarch Hammurabi developed specific codes insisting on bizarre and gruesome sanctions, and the law varied according to social class and positions. The underlying philosophy was retribution, a retaliatory legal system, such as if a man broke his neighbours’ bone, the offender’s hand will be cut in return by the State. Many criminal justice systems, including that of India, still practice Hammurabi’s criminal codes. The author of this article has visited almost all prisons in Kerala, Delhi, Maharashtra and some gaols in many other States. The general conditions, he found in those prisons were inhuman and pathetic. Many prisons housed three two to three times more inmates than their intended capacity. The dilapidated infrastructure, disgusting living conditions, abominable toilet facilities, lack of proper medical care, dearth of recreation facilities, and non-existent psychological and social support systems were frightening. Compared to prisons in western Europe, some of the Indian gaols were like dungeons. Even though prisons are total institutions, in many prisons, the inmates were treated with want of sufficient food, clothing, educational opportunities, empathy, and human dignity.
The morality of punitive actions
In some countries, the prison is meant to protect the ruling elites from public ire. It serves an expressive function of the party in power or the ruler to deal with crime, and such countries are deficient in a proper criminal justice system. A free-thinking public, who refrains from calling for retribution and revenge is a sign of democracy, education, and maturity. In India, even though punishment serves the expressive function to deal with crime, it is awarded by a legally constituted body. But the majority of convicts in prisons in India are the poor, the scheduled caste, the scheduled tribe, the illiterate, persons who belong to minority groups, the financially backward, the lonely, the vagabond, the mentally and physically challenged and the unemployed. These facts call for a serious conversation on the efficacy and impartiality of the criminal justice system in India. In such a milieu, whether punishment is morally sustainable is a question we need to reflect on. The role of the State as an agent of punishment and the process through which it has assumed the power to punish and its exclusive rights to punish, such as death penalty, also warrants deliberation.
The utilitarian and retributive viewpoints have specific aims. The utilitarian philosophy seeks to punish criminals to “deter” future offences, whereas the retributive theory seeks to punish offenders because they “deserve” to be punished, and it is a warning to the people that every criminal act merit severe retaliatory action. Retribution is also for prevention by keeping the offender in gaol, so that he/she is physically prevented from further crimes. Incarceration generates extreme hardship so that it discourages people from committing a crime. Further, there is a conception that offending behaviour created misery and conflicts in the society, and it destroyed its equilibrium, and hence, incapacitation helps to restore the equanimity lost, but unfortunately the treatment, psychological and social, is completely forgotten.
Treatment to Jolly
There is a firm conviction that those who suffer from schizophrenia, schizoid, psychopathy, sociopathy, and paranoia should not be punished. As Jolly invariably suffers from psychopathy and sociopathy, punishing Jolly for her acts questions the justice system and its ethical uprightness. But unfortunately, the moral philosophy of the IPC is strongly influenced by the Hammurabian code of criminal justice. In India, the elites think about their protection and wellbeing at the cost of the society, and they heavily influence the law-making process and direct the government to the utilitarian retributive reactions towards lawbreaking, forgetting that they too are equally more responsible for the crimes in the society due to their serious wrongdoings. Law is a creation of the upper=tenth, and it often violates the human rights of the general population.
If found guilty, what needs to be done with Jolly is not only a legal question but also ethical one, questioning the nature and quality of our democracy. Whether Jolly deserves to be punished or qualified to be treated in such a way, her psychopathic behaviour could be controlled, if not corrected. Whether Jolly is rehabilitated in the community to lead a supervised life so that there is an opportunity for her to be a law-abiding, constructive and self-supporting citizen is to be thought of seriously. These are complex issues, and legal, sociological, psychological, and victimological analyses and interpretations are required to reach a cogent and humane decision on Jolly.
*The author is former Professor and Dean, Tata Institute of Social Sciences, Mumbai; former Principal and Director, MSSISW, Nagpur University, Nagpur. He gained his Certificate of Achievement in Justice from Harvard University, Diploma in Human Rights Law from National Law School of India University, Bengaluru, MA in Social Work, specializing in Criminology and Correctional Administration from Tata Institute of Social Sciences, Mumbai; MA in Sociology from Shivaji University, Kolhapur; LLB and PhD from Nagpur University.