By Vinita Sithapathy.Having to deal with gender stereotypes isn’t unusual for a woman in India. You usually learn to face it, at times with a polite smile, but often also through gritting teeth or a strong word of protest against an unfairly prejudicial statement. In a country where the sex ratio is abnormally skewed, and where the political class routinely undermines the legitimate right of women to protest, it is no surprise that a substantial segment of the Indian population considers a woman’s rightful place to be within the walls of her home..What does come as a surprise is when a court of law legitimizes such a mindset of male superiority, more so when it is the Supreme Court of India. Recently in Sundararajan v. State by Inspector of Police, the Supreme Court while hearing a criminal appeal against a man convicted for the murder of a child in a village in Tamilnadu took into account the gender of the child as one of the “aggravating circumstances” for confirming the death penalty against the accused..Capital punishment itself has come under severe criticism and there are several who believe that the right of a court to take away life needs to be abolished. But even if one ignores the political debate surrounding the death penalty, it would certainly be of interest for us to examine the reasoning in cases where the death penalty is awarded to understand what constitutes a “rarest of rare” case..In the Sundararajan case, a Supreme Court bench comprising of Justice Khehar and Justice Sathasivam examined an appeal against the decision of the Madras High Court, which confirmed the death sentence awarded by the Sessions Court to Sundararajan for the kidnapping and murder of a 7 year old boy. The Supreme Court has in the past laid down guidelines as to when the death penalty may be awarded and what could be considered as a “rarest of rare” case deserving the death penalty. These guidelines require Courts to take into account the circumstances of the offender as well as the crime and to draw up a balance sheet of circumstances that aggravate or mitigate the reasons why death penalty must be awarded in that case..In this case the Supreme Court citing the gender of the murdered child as the reason for the child’s kidnap and murder and as one of those aggravating circumstances that lent itself to the death penalty made the following unfortunate statement:.“The choice of kidnapping the particular child for ransom, was well planned and consciously motivated. The parents of the deceased had four children – three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child, has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances.”.It is scarcely believable that this stereotypical statement came from the official citation of Supreme Court justices. This lamentable paragraph probably touches upon every single gender bias that Indian women have been struggling to fight against. To hear a court of law validate this in such explicit words is disappointing to say the least..Would the decision of the Court be any different if the kidnapped and murdered child was a girl? Would killing a female child be any less of an aggravating circumstance? Or worse, would it be considered a mitigating circumstance? The language of the Court implies that the agony caused to the parents of a murdered female child would be less than what it was in this case..Let us for a moment give the bench the benefit of doubt and assume that there was no gender bias in their mind. May be the Court was only stressing on the pre-meditation involved and merely articulating the perspective of the parents whose mindset caused them to experience greater grief and agony on the kidnapping and murder of their only male child. Even if that were the case, was it right for the Court to take into account the prejudice in the minds of the parents? By doing so the Court has, in my view, endorsed the bias that exists in our society in favour of the male child..The fact that the Supreme Court of India felt the need to make a gender based analysis of the murder of a child takes us as a society several steps backward in the struggle for gender equality. As recent crimes against women in India (including the Delhi rape case) portray, we are fighting against a deeply ingrained mindset that considers women to be inferior. Unless we teach our daughters to be independent, consider them to be capable of carrying forward our family lineage, allow them to inherit our property, expect them to see us through in our old age the way we expect our sons to and teach our sons that our daughters are no different from them, we are fighting a lost battle against gender prejudices. And as this case proves, even a court of law is not above societal prejudices..Vinita Sithapathy is a corporate lawyer advising clients on banking and finance and corporate M&A transactions. She is a graduate of Government Law College, Mumbai. She can be contacted at vinita.sithapathy@gmail.com.
