- Apprentice Lawyer
The murder of P Jeyaraj and his son, Benicks by police constables in the Sathankulam police station near Thoothukudi in Tamil Nadu, has sent ripples of outrage across the country, once again reminding us of the tremendous brutality that is inflicted on those behind bars.
An Annual Report on Torture in India published by the United Nations in 2019 has highlighted how routine and frequent custodial deaths are in India. In fact, in 2019 alone, 1,700 people died in police custody in India, amounting to approximately five deaths a day.
Based on the latest Prison Statistics Report, 2018 published by the National Crime Records Bureau (NCRB), two-third of prisoners in Indian jails are Dalits, Adivasis or from the Other Backward Classes (OBCs), 19% are Muslims, and 66% of inmates are either illiterate or have not studied beyond Class X. The intersection between marginalization and conviction is not a coincidence, and speaks volumes about how we have failed as a society in integrating the marginalized into mainstream society.
The media carries stories about police violence ever so frequently, each time generating shock and a call to action from a small segment of the population. It is possible that the community-wide tacit acceptance of institutional violence by the police is responsible for failing to spark a country-wide sustained mass movement to end police brutality. Many believe that convicts and even those suspected of having committed crimes are ‘getting what they deserve’ when they are beaten, tortured, or ‘encountered’ by the police. These demands for ‘instant’ justice often emanate from anger and frustration at the failure of the police and courts to operate speedily and efficiently.
However, many of us who are lawyers are able to argue in favour of due process, and to speak of a criminal justice system that balances the rights of the victim and the accused. It is, however difficult, to achieve large-scale systemic change by drawing solely from our outrage, which diminishes over time.
It has barely been two weeks since the death of Jeyaraj and Benicks, and many of us have already stopped demanding justice and accountability of the police. While we are able to view police violence through the lens of the bare provisions of the law and theories of criminal justice, our ability to recognize pain experienced by others decreases over the length of our experience with the law, to a point where we become desensitized and begin to accept things the way they are.
As lawyers who are only a few years out of law school, we write this piece to highlight the need for legal education to equip learners with the ability to harness emotions such as empathy and compassion while responding to situations unfolding around them. We believe that if law students are exposed to and made to internalize emotions such as compassion and empathy during the course of their learning experience, their response to situations they consider incorrect or immoral will be more sustained, kind and effective.
During our time as students, we were exposed to theories of criminal justice, learnt why a criminal justice system based on retribution was archaic and ineffective, and how the law disproportionately affects the oppressed. Our pedagogy gave us an understanding of what injustice was, and the importance of social justice movements in remedying these injustices.
However, our classes on jurisprudence mostly focused on the works of male, western scholars, whose imaginings of justice were bereft of emotions such as empathy, compassion and love, and instead focused on cognitive aspects of rationality, calmness and reasonableness. By the time we had graduated and become a part of the legal profession, our sensitivity towards violence had decreased considerably. Our legal education had failed to help us sustain our desire for change. What if our awareness of injustice had been sharpened by the values of empathy and compassion?
Philosophy has for long regarded emotion as antithetical to reason. Centuries of patriarchal conditioning have resulted in thinkers and scholars shunning emotion, relegating it to the realm of the feminine and as unworthy of consideration. Our understanding of social justice movements is that they work towards remedying ‘unfairness’. We do not learn that it is possible to understand justice as love, and social justice as making the experience of compassion open to all. Interestingly, criminal law itself makes room for some emotions such as anger, jealousy and passion (grave and sudden provocation), fear (right to private defense), hatred (promotion of enmity) and disgust (obscenity).
Feminist scholar Martha Nussbaum’s work is important in this context. Nussbaum believes that emotions, wrongfully regarded as opponents of reason, are of immense ethical value. The cultivation of emotions has not received sufficient interest from liberal political philosophers. Emotions such as anger, disgust, shame, love and empathy have played a role in shaping our beliefs. She construes the emotion of disgust as robbing the marginalized of their humanity, and of seeing the other from the lens with which we see ourselves in order to decide whether they are worthy of being treated in a humane and dignified manner. She argues that it is our shared vulnerability as human beings, that of being subject to the whims of an external force, or fate, that must convince us of the need for ethics of empathy and love.
In line with Nussbaum’s belief in the value of cultivating emotions such as empathy and compassion, we believe that legal education in India too should cultivate these emotions in students. It is important to reconfigure our legal education and culture in law schools. Subjects such as Law and Ethics, Jurisprudence, Law and Poverty, and Law and Literature, are a few subjects that will help students to humanize the law rather than limit it as an objective discipline based on facts and precedents.
Notably, Dr. Madhava Menon, one of the pioneers of legal education in India, had also rooted for grounding law students in the values of ethics and empathy. Based on our own experience and our interaction with students from premier law universities across the country, we realized that we all had similar experiences where we were not exposed to Nussbaum’s powerful, evocative work on why love matters for justice.
Teaching ‘hard’ subjects such as criminal law, contract law, and constitutional law, from an interdisciplinary perspective, thus rooting the law in the lived narratives of people, will enable students to understand the impact of law on society.
Making clinical legal education an important part of the curriculum, and encouraging field-based research are key to making students empathize with those on the receiving end of the law.
Our legal education has unfortunately not taught us how to extend our concern and empathy to those who have broken the law and who have in their own way carried out injustice by not adhering to it. We display collective apathy towards the squalor in which they survive in prisons, and towards the abject lack of humanity in terms of how they are dealt with.
Our pedagogy has left us obsessed with the pursuit of the absolute truth and textbook notions of justice. In understanding justice, we refer to our sense of morality and law as the focal point, rather than the dignity, humanity and the experiences of another. The significance of literature as a pedagogical tool to promote empathy lies in how it serves as the gateway to truly placing ourselves in a character’s position, irrespective of how different the character is from our lived reality, and to understand why the character does what she does and what got the character there.
Adding to Nussbaum’s argument that it is important for us to study literature as it expands our empathy and extends the contours of our moral compass, we suggest that documentaries, as well as popular cinema and music can also serve as useful pedagogical tools that will sharpen our experience of empathy.
Having a working relationship with such courses may compel us to bring the marginalized within the radius of our empathy. Our justice system may then shift to a more balanced form, where the perpetrator’s rehabilitation is also given due importance. We have seen great benefits of adopting empathy to deliver justice. For instance, the Truth and Reconciliation Commissions in South Africa, helped both the victims of apartheid and its perpetrators truly understand each other’s position and achieve closure over a wrongdoing. Such an approach to justice has many other systemic benefits such as reduced recidivism rates, and providing the State the bandwidth to focus on its welfare goals without perpetrating violence. The benefits of such an approach are far more positive and sustainable than our traditional approach of achieving justice.
When our response to police brutality is rooted solely in anger, unaccompanied by a strong sense of empathy and compassion for the tortured, our desire to effect change fades as our anger dissipates. It is crucial to harness the potency of our love for our fellow beings to sustain any social justice movement, including one geared towards police reform.
Two important, much-revered political figures who have had a deep impact on the world - Mohandas Gandhi and Nelson Mandela - were both lawyers. Both harnessed the revolutionary power of love in their movement towards justice. Legal education has sadly failed to make us aware of our heritage of compassion and the transformative potential of emotion. Recognizing empathy, compassion and love as cornerstones of legal education will make us better lawyers and more effective advocates for social change.
Malavika Parthasarathy is an incoming LLM candidate at the University of Chicago Law School. Stuti Shah is an Associate at a leading Indian law firm.