Do Rapists Have the Right to Live?

Even as the din over capital punishment for rapists rises, filmmaker MS Sathyu speaks up against the State’s right to take a citizen’s life

As the nation’s attention turns to increasing reports of young women being brutally raped and murdered, many are demanding capital punishment for the perpetrators. However, in a little known film, A Right to Live, acclaimed filmmaker MS Sathyu questions the right of the State to take a citizen’s life. The 56-minute documentary on the death penalty includes a video-taped interview with a death-row inmate, Dhananjoy Chatterjee, who was convicted of the rape and murder of a 14-year-old schoolgirl in Kolkata. Later, in 2004, Dhananjoy was hanged after his mercy petition was rejected by India’s then President APJ Abdul Kalam.

Sathyu believes that capital punishment should not exist in a democratic and civilised society. While researching the subject to highlight what he calls the “State’s unwarranted right to take the life of a citizen”, he decided to focus on Dhananjoy’s case. “I thought it would be easy to interview him as I had friends in the government there [in West Bengal]. But that was not the case,” Sathyu says. For over six months, the West Bengal government denied him access to Dhananjoy on some pretext or the other.

Finally, Sathyu approached the Supreme Court, which in a landmark judgment in 1994 held that if the accused agreed, the filmmaker should be allowed to interview him on camera. ‘The media has the right to every criminal. Likewise, every criminal has the right to every media,’ the court stated.

“The only rider was that the film should not be broadcast before the mercy petition was disposed of by the President, to which I agreed,” recalls Sathyu, sitting at his Bangalore office.

When Sathyu and his team interviewed Chatterjee, he had already spent four years on death row. It would be another 10 years before his mercy petition was finally rejected. “For this reason, the completed interview stayed with me for 10 years,” says Sathyu.

A Right to Live has since been sold to the Public Service Broadcasting Trust (PSBT), a New Delhi-based non-governmental not-for-profit trust, but Sathyu says he has no idea why it was never broadcast. PSBT finally screened it once in 2012, at its annual festival.

The filmmaker, who started his career in the 1950s as an assistant director in Mumbai, has directed nine feature films in Hindi, Urdu and Kannada and made 20 documentaries and tele-serials in different languages. His classic, Garam Hava, a poignant film on Partition, has recently being digitised and will be re-released in theatres shortly.

Sathyu recalls a film that he shot in the early 1970s with Sanjeev Kumar in the lead, where the protagonist is hanged and for which he had to visit the Central Jail in Bangalore. “[There] I saw the gallows—a raised platform and a noose hanging from a wooden pole. Though it was not in use, it was disgusting to see it kept as an exhibit or reminder of the British Raj,” he says.

“The pulley and other mechanisms were still in working order and I believe were asked to be kept so by the government. We filmed the entire sequence for the movie where the hangman measures the convict’s height and weight, practises the execution by using a sand bag [of the same weight] as the convict, and the moment when he actually pulls the lever which [opens up] the floor below and leaves the man hanging in air, suspended by a noose around the neck. How can anyone go through such motions in real life?” he asks.

The filmmaker’s interest in making a documentary on capital punishment took shape in the early 1990s when an Italian delegation asked the United Nations to abolish it. Around that time, there were around 40 convicts awaiting the hangman’s noose in India.

Days after the Supreme Court ruled in his favour, Sathyu went to Alipore Central Jail with a copy of the order. “My team shot the interview for a whole day with a high-band video camera. Later, I used actors to re-enact the crime scene in the same building where the rape and murder occurred,” says Sathyu.

The film crew also tracked down Dhananjoy’s family members, who had left their village after the incident to escape media attention, and features the opinions of social scientists, advocates and senior judges. Recently, Sathyu tried to widen the scope of the debate on abolishing the death penalty by including in his film the opinions of some lawyers on Ajmal Kasab, who was recently hanged. “Kasab’s case is different. He waged war against India. But the issue is still the same,” says Sathyu. Studying assorted cases in which the death sentence was awarded, he says that he realised that often there was not enough evidence, no witnesses and only conjecture presented by the prosecution. “No matter what anybody’s crime is, the State has no right or power to kill the person. A welfare state like ours should reform people, not kill them. I am against capital punishment. It is unconstitutional,” he says.

In the interview with Dhananjoy, says Sathyu, the convict defended himself admirably and claimed that the prosecution had a fake case.

Dhananjoy had worked as a security guard in the apartment building where Hetal Parekh was raped and murdered on 5 March 1990. Her parents had earlier complained of his misbehaving with their daughter and got him posted out of the building. In the film, a wiry Dhananjoy sitting on the floor of his small cell claims he is innocent. Speaking in Bengali, he insists that he was neither on duty nor in that building on the day of the incident as he had already been posted to another location. “The prosecution has built a case on clothes and a watch left behind inside the apartment. Yes, the shirt, lungi and watch are mine, but they were the ones I was asked to pack from my house in the village when [the police] came to arrest me. They later showed them [in court] as if I had left them at the scene of crime. This evidence is not true,” he states.

He also claims that the police had forced him to confess by placing him inside a truck tyre and rolling him around till he agreed to own up to the crime.

“I found him very articulate and he may have been telling the truth. He said one person who was known to the family and used to come often in a red Maruti car was never identified or called by the police for interrogation,” recalls Sathyu. Talking about his life till it took a sudden turn for the worse, Dhananjoy says that he was always fascinated with the uniformed forces. He claims he even got a letter to join the state police for training, but his father, a priest, forbade him. He tried to sign up for the CRPF but did not make the cut. Finally, he ended up becoming a security guard.

He got married on 27 February 1989 to a woman named Poornima. It was an arranged marriage and he had just begun to settle into his new life when the incident happened. Hounded by the police and media, his wife left him and joined a missionary. She could not be traced by the film’s researchers.

A judge who appears on screen says Dhananjoy suffered a double punishment, having served 14 years in solitary confinement and then being executed. “Not fair at all. He has had a continuous fear of death, of the State ending his life,” he states.

Sathyu also tracked down Dhananjoy’s family, which had left their native village near Bankura and moved to Kuludihi to avoid media attention. Initially, his father, Bangsidar Chatterjee, did not want to speak to the team. “They were not willing to listen at all. The father felt it was all a police conspiracy to frame the family. They relented only after they saw a full-page picture of Dhananjoy looking out from behind bars in a Bengali tabloid and understood that we were only trying to help. They then agreed to an on-camera interview,” recalls Sathyu.

But that was not the case with the parents of the victim, who had moved out of Kolkata and settled in Mumbai. “I spoke to them on phone, but they refused to come on air,” says Sathyu.

Bangsidar, a Kali temple priest, says on camera, “We are not history-sheeters, we are Brahmins. [The complainants] are big people, they can influence the case. When the hanging was ordered by the judge, the lawyers asked for money. I have none. Due to their fear, I have not gone to Calcutta at all even to see my son.” He says that the family had already sold eight to 10 bighas of land to fund lawyers.

Even as Dhananjoy’s father is being interviewed, in the background, one of his sisters suffers an epileptic fit. Sathyu says it seemed to be a frequent occurrence as the family appeared quite used to the phenomenon. “If you look around the house, or the hut that passes off as one, we can see abject poverty. Dhananjoy was the only bread-earning member sending money from his meagre earning while his father used to get Rs 20-30 every time he got called to perform the duties of a priest at functions. His other son, Bikash, is unemployed. Nobody has come forward to marry his two sisters after the case hit headlines.”

When Sathyu asks what kind of punishment a person should get for rape and murder of a minor, he only says: “How can I say? I am an ordinary man. I believe in satyameva jayate. I believe my son will be pardoned.”

The fact that judges who were interviewed for the film were divided on the issue of capital punishment speaks volumes. Justice (retd) Rajinder Sachar says the Supreme Court had already held that death should be handed out only in ‘rarest of rare cases’. But another judge is of the opinion that “if you remove hanging, crimes will only increase. [Are] abduction, rape and killing fit [cases] to show mercy?” he asks.

Senior Supreme Court advocate PP Rao believes the death penalty acts as a deterrent. He cites a case of killings by Naxalites—who were awarded the death penalty. “Such cold-blooded pre-meditated acts should be awarded death. Even educated people are doing heinous crimes nowadays. Human life has no value. Death penalty has a deterrent value in the interest of society,” says Rao.

Justice Khare says that in India’s 1898 Code, death and life sentences were exceptions. “But in 1955, when [independent India] amended the CrPC, life sentence became the rule and death sentence the exception. The judge awarding it had to give special reasons. Later, the SC laid down the rules of ‘rarest of rare’—where the offence was diabolic in nature and cruel in execution. There had to be proportionality between the nature of crime and the sentence.”

In the 1960s, when abolition of capital punishment came up as an issue in Parliament, its members opined that it was not yet time for such a shift. When such a question arose before the Supreme Court later, a five-judge bench upheld it by a slim margin in a 3:2 verdict, recalls Nitya Ramakrishnan, a lawyer who works in Mumbai.

Another practising lawyer of New Delhi, whose daughter too was raped and killed, was against the death sentence. “My wife was of the opinion that it was th just punishment for her daughter’s rapist, but I disagree, as every criminal has to be given a chance,” he says.

In the two decades since he made the film, Sathyu says the issue of abolishing the death penalty has not moved further, though it remains a subject of world-wide debate. The United Nations has held that it is for each country to decide on awarding capital punishment, as Islamic countries, dictatorships and Communist countries have been insistent on retaining the measure.

“The issue is not just for rapists. Every conceivable crime has capital punishment. It acquires a danger in dictatorships and in Communist countries too. Look at the fate of Bo Xilai in China, a party functionary who has been accused of embezzlement in a complex case where his wife has been accused of ordering the killing of a British national. In India, it is a question of whether we should bring about a constitutional change,” says the filmmaker.

In the 16 December 2012 Delhi rape case too, many protestors who assembled for days to get justice for the victim demanded capital punishment. It does not help that the term ‘rarest of rare’ remains undefinable.

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