Anasuya Goswami talks about how human elements play a key role for awarding punishments in cases where societal pressure exists.
“Given that the nineteenth century was the century of Socialism, of Liberalism, and of Democracy, it does not necessarily follow that the twentieth century must also be a century of Socialism, Liberalism and Democracy: political doctrines pass…and it may rather be expected that this will be a century of authority…a century of Fascism.”
The statement by Benito Mussolini apparently appears not only logical but also backed with historical evidence. Different political parties swearing oaths of fealty to different ideologies come to power at different points of time and adopt dissimilar policies. The nature of politics of any state evolves with changes in the surroundings and circumstances. But is this really so? Or, is the nature of politics something essentially fundamental, immutable, and inalterable? Could we be living the same politics that the Pandavas and Kauravas of our famed epic did?
In an attempt to answer this question, the researcher has analyzed Rabindranath Tagore’s epic poem, Gandharir Abedan, or, The Plea of Gandhari. That the poem is a literary masterpiece is unquestioned. This review is not to assess its literary merit, but to use the profound ideas expounded in it as a means of answering the question raised by the researcher.
The poem is of considerable length, and delves into diverse themes through the course of its verse. It would not have been possible for the researcher within the scope of this Literature Review to explore each of these, and therefore she has restricted her inquiry to four specific themes. In each, she has extracted the actual lines from the relevant portion of the poem, followed it with a translation (for the purpose of which she has, unfortunately, been compelled to resort to her own translating abilities due to the unavailability of the translated text in the library or in online databases), after which she has attempted to find reflections of the same philosophy in contemporary politics.
The narrative of the poem is not particularly relevant for the purposes of the review, but an idea of it is required for an understanding of the extracted portions. When the Pandavas have been banished from the Kingdom of Hastinapur for twelve years, having been deprived of their rightful claim to the throne, Duryodhan, who is now the king, arrives to talk to his father, the blind Dhritarashtra, about his victory. The latter condemns his son, saying he has violated dharma by his deeds. Duryodhan however is adamant as he justifies his means of seizing power, and goes on to say that he would consolidate his rule with increasing centralization of powers and by trampling over the voices of all those who condemned him. He departs when his mother, Gandhari arrives.
She implores Dhritarashtra to forsake Duryodhan, and when her husband says that it was difficult for him, as a father, to mete out such harsh punishment to his own son, the pious lady says that if he did not judge Duryodhan with the same laws as he did the other individuals of the land, then all his previously rendered judgements would become unjust, because of unfair use of discretion. However, she goes on to say that it was understandable for Dhritarashtra to be agonized at the prospect of punishing his son-in fact, she states, that if the law-giver is not pained as his convicts an individual, then it amounts to a process not of adjudication, but of persecution.
(Gandhari): My Lord, with the Punished,
If the Adjudicator cries with equal agony
It is the best judgement.
If a judgement to the heart
Brings no pain,
Then it amounts to persecution by the Powerful.
One of the most widely-known anecdotes in Indian lore about judicial compassion surrounds Ellalan Chola, the King of Anuradhapura, who, upon having defeated the Sinhalese king, Meghavarna (who happened to be his friend from childhood), imprisoned him in a dungeon for a considerable period of time, providing him scarce food and no access to sunlight. When he was set free, an indignant Meghavarna accused the Chola king of having subjected him to unjust and inhuman treatment. Ellalan responded by saying that during this entire period, he too had imprisoned himself in a similar dungeon, and consumed the same food as his defeated prisoner. Perhaps as a reminder of the idea that judges, in all their objective application of the law, should not lose sight of compassion, a statue of this great Chola king still stands in the Madras High Court today.
‘Procedure established by law’ is used to try and adjudge the case against an accused, so as to eliminate the human elements, such as discretion, which could lead to injustice. However, when the human element of compassion too is eliminated completely, the judicial process becomes but one where the dominant revel in their power over those at their mercy. The Hon’ble Supreme Court in the case of State (N.C.T. Of Delhi) vs. Navjot Sadhu @ Afsan Guru awarded death penalty to Mohd. Afzal and held that “the collective conscience of the society will only be satisfied if the capital punishment is awarded to Afzal Guru.” Such blatant lack of compassion for an individual, where a life is sacrificed to satisfy the revengeful thirst of the masses, appears to the researcher the result of a situation where the ‘Justice’ (called so because he is meant to be an embodiment of the same) has lost sight of the bigger picture of the purpose of punishing individuals who break the law.
While objectivity is necessary in the adjudication process, one ought not to becomes so enraptured by the means so as to forget the end, for, the purpose of law, according to the researcher, is to ensure a harmonious society, and punishing those who obstruct the achievement of this goal is simply a regrettable collateral damage. Here, the researcher believes, it becomes important to distinguish the crime from the criminal, and to reserve the abhorrence for the criminal act and the sympathy and the mercy for the law-breaker.
Benito Mussolini, Definition of Fascism, in the Italian Encyclopaedia (1932).
Rabindranath Tagore, Sanchaita,244 (Punascha, 2002).
Madhushudan Majumdar, DharmarajIlwalChol, Shuktara, Aug 14, 1971, at 408.
High Court of Judicature at Madras, Madras High Court http://www.hcmadras.tn.nic.in/hhist.htm
The Supreme Court of the United States of America too, at the Eastern side of its main entrance, has a statue symbolic of ‘Justice tempered by Mercy.’ Thus the complete detachment of human emotions from the judicial process is not ideal.
The Supreme Court of the United States, Touring the Building, The Supreme Court Building, (Last Accessed 23 March, 2015, 12:46) http://www.supremecourt.gov/about/courtbuilding.aspx
 Appeal (crl.) 373-375 of 2004
 John Braithwaite, in his work, Crime, Shame and Reintegration, talks about this need to separate the deed from the doer if Restorative Justice is to be achieved, and the law-breaker is to be re-integrated into as opposed to shunned from society.
John Braithwaite, Crime, Shame and Reintegration, (Cambridge University Press, 1989)