Just Images
Abstract
In 2010 a High Court in India found Shabnam and Saleem guilty of conspiring and murdering seven of Shabnam’s family members. They are both currently in death row. If executed, Shabnam will be the first woman to be so killed in independent India. In the decade she’s spent in prison, at the precarious edges of mortality, Shabnam learnt to knit, stitch, and embroider textiles as clothing and bags. Her lawyers documented and presented images of these objects as evidence of reform and a promise of rehabilitation. Procedurally, the possibility of reform is to be given due weight as a mitigating circumstance to be considered for commutation of the sentence. I am interested in taking the materiality of these objects seriously, and treat them as aesthetic objects. There is a rich intellectual tradition of narrative and life-writing from death row. Approaching death intensifies life, taking its most coherent shape in the form of the story. As Walter Benjamin quips, ‘a man’s life first assumes transmissible form at the moment of his death,” and elsewhere, “death is the sanction everything that the storyteller can tell.” But here we have clothes, textiles, textures, created by Shabnam’s hands. And I only have photographs of these objects. It’s a non-narrative aesthetic, a different order of expression than storytelling. What happens when these photographs enter a legal plea, as evidence of reformation, and a prayer for the commutation of sentence?
Citation: Saikumar, Raj. “Just Images” The Jugaad Project, 1 August 2022, www.thejugaadproject.pub/just-images [date of access]
“The stuff of my being is matter, ever changing, ever moving, but never lost...”
An early article that I wrote on death penalty law in India was on the Law Commission of India which in its 262nd Report recommended the abolition of death penalty for all crimes except terrorism.[i] I critiqued some lapses in the Commission’s reasoning by showing how it sneakily moved from an argument based in constitutionalism (‘right to life and liberty’) for the abolition of capital punishment to surreptitiously relying on a ‘democracy’ justification (‘the People want the punishment, and it is up to the legislature to abolish it’) for retaining the punishment in cases of terrorism.[ii] Looking back, I am dissatisfied that my approach was too limited by the parameters of ‘legal reasoning’. And so, in a later article I turned my attention to the use of rhetoric in death penalty judgments.[iii] I close read narrative techniques and rhetorical devices deployed in two recent Supreme Court judgments. Embedded in these narratives are judges who see themselves as reconstituting a community on the verge of breakdown. In a circular operation, monsters are linguistically created, and the monstrosity of the criminal is then used as justification for death. However, I have now come to realize that this too isn’t enough. In this short essay, I reflect on the need to augment this hermeneutical approach by taking ‘legal materiality’ seriously. To study the intersection of legal thought and matter, artifact, technology, and material practices as the conditions of possibility through which the law arises, manifests, becomes present. Let me explain:
As per the law in India, a judge can impose the death sentence only in the ‘rarest of rare’ cases. To identify what constitutes a ‘rarest of rare’ case the judge must identify and balance aggravating factors (circumstances relating to the crime itself, such as its brutality and heinousness) and mitigating factors (circumstances relating to the criminal’s life more generally). One such mitigating factor is the obligation on the State to show that the accused is beyond the “probability of reformation”. If the accused is capable of reformation, then this needs to be factored in by the judge, tipping the scales towards life-imprisonment rather than death. Yet the meaning and philosophical provenance of ‘reformation’ has received little elaboration by the courts. When evidence of reformability is presented (which is already rare), the judges display no principled approach to reading and interpreting this evidence.
In my conversations with Shreya Rastogi, a lawyer at Project 39A,[iv] I encountered the case of Shabnam and Saleem, two prisoners awaiting death row. Rastogi represented Shabnam in the Supreme Court. If hanged, Shabnam will become the first woman subject to the capital punishment in independent India. In 2010, Shabnam and Saleem were found guilty of conspiring and murdering seven of Shabnam’s family members. As per the prosecution’s case, Shabnam and Saleem, in their twenties, were in love and seven weeks pregnant. Shabnam’s family opposed their relationship. So, they sedated her family members and killed them by decapitating them with an ax. The appellate courts described the crime in their judgments using language that evoked the ‘rarest of rare’ gruesomeness in the mind of the reader. The Supreme Court judgment described the crime scene more than ten times in the span of thirty-five pages, with a profusion of adjectives evoking the ‘diabolical’, ‘monstrous’, ‘gory schemes’ planned and conspired by them. It patriarchally genders the crime by conjecturing that Shabnam acted out of ‘lust’, to ‘fulfill her desire,’ and repeatedly calls her relationship with Saleem ‘illicit’ despite them being two consenting adults. The Court describes the heinousness of the crime so bluntly and so repeatedly that any further inquiry into the mitigating conditions is blocked. The balancing of aggravating and mitigating circumstance is thrown off kilter. As William Connolly puts it, “The desire to punish crystalizes at the point where the shocking, vicious character of a case blocks inquiry into its conditions, repressing examination of uncertainties and ambiguities pervading the very concepts through which it is judged. Where astonishment [over the extraordinary nature of the crime] terminates inquiry, the element of revenge is consolidated.”[v]
The trial court sentenced the couple to death, and the verdict was upheld by the Allahabad High Court (2013) and the Supreme Court (2015).[vi] A review petition was filed at the Supreme Court which was also rejected in 2020.[vii] It is while going through these files, affidavits, pleas and submissions - reams of paper, black on white, standard-form legalese, morphing into what Nasser Hussain called ‘hyper legality’[viii] – profuse and dispersed typescripts finding its way around a maze of procedures, special jurisdictions, clerks, registrars and notaries - it is while going through these papers that these photographs jumped out of the page.
Fig. 1. Supreme Court of India, Review Petition No. 635 of 2015 in SLP (criminal) No. 802 of 2015.
Let me frame these photographs:
The Court limited itself to the narrow temporality of the crime itself. It began and ended with the event. This choice of how to tell the story deprives the reader from identifying with Shabnam and Saleem thus precluding sympathy. They are nothing but criminals. To combat this privation, the defendants presented mitigating evidence that broadened the timeframe to include Shabnam’s life, pre-crime and post-crime. Pre-crime evidence included her education qualifications (B.A. and M.A in Geography), her employment as a primary school teacher, the lack of criminal antecedents, her psychobiography and familial relationships. In post-crime evidence, the lawyers provided testimonies of her conduct in jail, her interest in tailoring, embroidery, knitting and fabric painting. Shabnam was six weeks pregnant when she was jailed. She gave birth to a son, Taj Mohammad, in 2009, and Taj lived with her in prison until he was six years old. He was adopted by a college friend and journalist, Usman Saifi and his wife, Vandana Singh. They also presented affidavits from Shabnam’s extended family members like uncles, aunts, and grandparents who gave an expansive point of view, going back to childhood and adolescence. The crime as an event, gruesome though it was, is interjected in the middle of these narratives. The crime is presented as an aberration in her life, revealing the possibility of restoration of and rehabilitation. As Shabnam’s maternal uncle writes in his affidavit, “Through this affidavit, I wish to humbly request the judges of the Hon’ble Supreme Court to spare the life of my only niece Shabnam. My family and I have already lost my sister, Hashmi and her family and we cannot bear to lose any more.” (48) This is a plea against retribution. The courts turned a blind eye to Shabnam as the mother of Mohammad Taj, and they do so ironically in the name of the patricide that Shabnam is found guilty of. The violence is cyclical. Mohammad Taj’s foster parents attest to the maternal love and care he received while growing up in prison but also the trauma the boy experiences living in the knowledge of his mother’s condition. Here is a video of Taj appealing to former President of India to commute her death sentence.[ix] Shabnam writes long letters expressing her pain in being separated from him; the affidavits meant to communicate this to the judge happens ironically, in the ‘un-sayability’ of her pain: “It has been three months since I met Taj and it feels like that I have not met him for an year. Whenever Taj comes to meet me I feel very happy. I cannot tell you how it feels when Taj says that when Mummy will come home, tears come to my eyes after hearing this”[x] (emphasis added). Dignity is the human promise, desire, the hope to prosper, to live a good life. The promise of reformation, the space that needs to be given for one to change, is a dimension of human dignity which is a constitutional principle entrenched in Article 21 of the Indian Constitution. The ineffability and illegibility of the un-sayable also characterizes ‘dignity’ as a cryptic silence that cannot be deciphered and yet is the inexhaustible source of possibility and promise.
Given this frame, let us reconsider the images (Fig. 1). These are objects, artefacts, made by Shabnam and photographed by her lawyers and filed in the review petition. Reading the order it is clear that the court sees these objects in utilitarian terms as revelation of her ability to reintegrate in the socio-economic life of society. Reading these lines from the judgment, it is as if they hardly even looked at these photographs:
“We do not find any justification and reason to review and overturn the final findings and conclusion and commute the death sentence on the ground such as one of the review petitioners has acquired higher academic qualification and the other has learnt embroidery and tailoring skills or their conduct in jail has been good. These assertions even if considered, do not commend review, given the overwhelming aggravating factors and material on record…Yet she (with Saleem) had committed the patricide exterminating seven lives including a 10 month-old baby…The devilry was with the desire to see that no heir except Shabnam remains alive. They wanted to grab the property of Shabnam’s parents who were against their marriage.”
The Supreme Court chose to look away from these images. Critics have often remarked on the iconophobia of the blindfolded Justitia, based on the Roman goddess of Justice. Writing about the iconoclastic purification of modern law, Martin Jay says: “The law was now to be presented entirely in language and justice dispensed only through language, necessitating discussion and persuasion, rather than appearing in images, which might overwhelm through dazzlement.[xi]
But I was arrested by it. I see them as aesthetic objects which demand the beholder to be open, to see, feel, sense, be touched by it. What if we consider these objects not as commodities with use and exchange value but as aesthetic works? This is where humanistic education becomes important. As Gayatri Spivak puts it, the humanistic ability to ‘read’, “suspending oneself into the text of the other – for which the first condition and effect is a suspension of the conviction that I am necessarily better, I am necessarily indispensable, I am necessarily the one to right wrongs…”[xii]
These purses, handbags, salwars (loose drawstring pants), kurtas (long tops), blouses, sweaters, each bears its own weaves and patterns, carefully cut, meant to be fashionable. The crocheted and knitted sweaters show a high level of skill too. It’s what Spivak calls “suturing”, the work of undoing/reweaving one’s life in the torn fabric of culture and responsibility.[xiii] These images call upon the judge to suture the torn and weak responsibility-based systems into a conception of human dignity and rights.
These are objects of self-expression that have an inspiration, and a vision of someone who wears them while walking on the streets with a freedom that the maker is deprived of. If we find them beautiful, which I do, what implications does it have for the question of justice? How might one read these objects as not just products of labor but of aesthetic desire and effort? What do they teach us about apprehending evidence with respect, of perceiving dignity in the other?
Perhaps, in these works of ‘art’, for that is what I consider them, there is the quieter and more subtle aspect of repair and regeneration; it shows an incipience of transformability. The quotidian experience of embroidery or crochet, familiar to many, opens into an autonomy that is inseparable from the desire to not be degraded. As aesthetic objects, bearing promises of enchantment, these reflect a mode of action as accomplishment.[xiv] They figuratively stand for a work of self-presentation and uprightness or ‘moral orthopedics’ as Jeremy Waldron puts it: “When we hear the claim that someone has dignity, what comes to mind are ideas such as: having self-control; self-presentation as someone to be reckoned with; not being abject, pitiable, distressed, or overly submissive in circumstances of adversity.” These images when read as aesthetic objects gesture at a self-control and self-possession that is persistent and illuminating even at the brink of extinction. They gesture at a choice, a demand to be seen and acknowledged with respect, and ultimately, the capacity to reform and change. When the judge looks away, it is multiply degrading because it overlooks the dignity of the individual; her demand to not be rendered abject, pitiable, broken down and distressed even in these extreme conditions of detention.
I am thinking of Elaine Scarry’s On Beauty and Being Just (1999) which demonstrates how beauty instructs and inspires us and enables us to respond to injustice, it assists us in achieving justice. For Scarry, seeing beautiful things causes us to bring new things of beauty into existence. Beauty is life-affirming; it makes the observer’s existence “more vivid, animated…worth living.” [xv] The aesthetic object is not just about appeal but about the relationship between senses/sensory perception and the capacity for judgment and the production of meaning. This requires the judge to not just be humanistic but to be ‘theatrical’. When Marett Leiboff speaks of theatricality in law, she refers not to drama with a script and actors but the body as a site of responsibility: “I use theater concepts to reorient in order to think about the productive capacity of theater to help us think in law about ways to see, and how we might train our bodies to use theater beyond sneering and sighing and laughing, to become more responsive lawyers and legal interpreters, to think in terms of a postdramatic law.”[xvi] For Leiboff, the jurist cultivates the prudence and apprehends justice not just via rights-reasoning but through the work of body, to train the body to respond with prudence and fairness to that which is beyond the self.
To conclude: the lapse in my previous writings on the law is in not taking ‘materiality’ seriously. By which I mean taking seriously the intersection of legal thought and matter, artifact, technologies and material practices, which includes aesthetic objects. I refer to some of the literature here but don’t have the space to engage with them.[xvii] Let me however return to the photographs filed for submissions in the Supreme Court. Files, Cornelia Vismann says, are at law’s origin; it is the artifact through which the law gets its authority by splitting off from the administrative actuality, to conduct the actual execution of the law.[xviii] Yet, these are objects that the judges chose to look away from, denying their aesthetic value. Peter Goodrich reminds us, “Law is a theater that denies its theatricality, an order of images that claims invisibility, a series of performances that desire to be taken as the dead letter of prose and so the dead hand of the law.” No longer the exhortations of the legal profession, disembodied and floating in mysterious cloaks. Instead, to think justice is to think matter, material, relations that are embodied, sensory and what Daniela Gandorfer calls ‘matterphorical’.[xix]
Notes
[i] These reflections are based on a longer essay co-authored with Shreya Rastogi (Project 39A) on the place of reformation in death penalty law in India (Cambridge University Press, forthcoming 2023). I am grateful for my conversations with Shreya and all her inputs on this case.
[ii] “Negotiating Constitutionalism and Democracy: 262nd Law Commission Report on Death Penalty” NLSIU Socio-Legal Review, 12.1 (2016) 81-107.
[iii] “To Shock the Conscience: Rhetoric in Death Penalty Judgments of the Indian Supreme Court.” South Asia: Journal of South Asian Studies 43.4 (June 2019): 694-710.
[iv] This project is inspired by Article 39-A of the Indian Constitution, a provision that furthers the intertwined values of equal justice and equal opportunity by removing economic and social barriers.
[v] William Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995) 47.
[vi] Shabnam v. Union of India, [2015] 6 SCC 702.
[vii] Shabnam v. State of Uttar Pradesh [Review Petition (Crl) No. 635-636 of 2015] order dated 23.01.2020.
[viii] Nasser Hussain, ‘Hyperlegality’ (2007) 10 New Criminal Law Review, 541; For Hussain’s hyperlegality in the Indian context, See, Jinee Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United Sates and India (NYU Press, 2011); Shrimoyee Nandini Ghosh and Haley Duschinski, ‘The Grid of Indefinite Incarceration: Everyday Legality and Paperwork Warfare in India-Controlled Kashmir’ (2020) 40 Critique of Anthropology 1.
[ix] https://www.youtube.com/watch?v=Q_yFEOpUsQY
[x] Annexure- S, Supreme Court of India, Review Petition No. 635 of 2015 in SLP (criminal) No. 802 of 2015.
[xi] Martin Jay, “Must Justice Be Blind? The Challenge of Images to the Law,” Refractions of Violence (NY: Routledge, 2003) 91.
[xii] See p. 532 in Gayatri Chakravorty Spivak, “Righting Wrongs,” The South Atlantic Quarterly, (Vol. 103, No. 2/3, 2004) 523-581
[xiii] Gayatri Chakravorty Spivak, “Use and Abuse of Human Rights” Boundary 2, 32:1 (2005) 131-189.
[xiv] The approach to dignity in this section is influenced by the work of Jeremy Waldron, Dignity, Rank, and Rights (Oxford: Oxford University Press, 2013).
[xv] See pp. 24-25 in Elaine Scarry, On Beauty and Being Just (Princeton: Princeton University Press, 2001).
[xvi] Marett Leiboff, Theatricalizing Law, Law & Literature, (Vol. 30, Issue 2, 2018) 356.
[xvii] Hyo Yoon Kang & Sara Kendall, “Legal Materiality,” Oxford Handbook of Law and Humanities, eds. Simon Stern, Maksymillian Del mar, Bernadette Meyler, (Oxford: Oxford University Press, 2020).
[xviii] Cornelia Vismann, Files: Law and Media Technology, trans. Geoffrey Winthrop-Young (Palo Alto: Stanford University Press, 2008).
[xix] Daniela Gandorfer, “Introduction: Matterphorical,” Theory & Event, (Vol. 24, No. 1; 2021).
