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Why the Nirbhaya verdict is a lost opportunity

By Apoorva Mandhani

Seated in the visitors’ gallery of the jam-packed Courtroom no. 2 of the Supreme Court on May 5, a teary-eyed Asha Devi hugged her husband Badrinath Singh the moment the Bench upheld Death sentence awarded to the four men convicted for the December 16 gang-rape. Thunderous claps resounded in the Courtroom, reflecting the prevailing mood of the nation that awaited justice for India’s daughter brutally assaulted, mutilated and killed. Not everybody is applauding though, with the verdict having unleashed a plethora of questions on the shifting nature of judicial pronouncements on death penalties, and on the viability of death a penalty as a punishment.  

The verdict from a lawyer’s lens

The Capital Punishment awarded to the four men convicted of the crime was upheld by a three-Judge Bench of the Apex Court. The Judges opined that the incident fell under the “rarest of the rare” category, which warrants death penalty, according to several judicial precedents. While the judgment delivers on the hopes of the public at large, it raises several questions on principles of sentencing laid down by the Court itself in the past.

Senior Advocate Raju Ramachandran, who was appointed as the amicus curiae in the case, was of the opinion that the court had failed to follow judicial precedents and ignored the mitigating factors set forth in the landmark judgment rendered in the case of Bachan Singh v. State of Punjab. Mr. Ramachandran had argued that in the absence of separate reasons for imposition of death penalty on each of the accused, the sentence should be set aside as the Code of Criminal Procedure mandates that an accused be given an opportunity to be heard individually on the question of sentencing. He had further opined that such sentencing despite absence of attribution of individual roles would not be in conformity with due process of law. The judgement was passed, however, disregarding such concerns.

It is said that justice should not only be done, but also seen to be done. This, however, seems to be a case where while justice seems to be done, the actuality of it having been done still needs deliberation.

A case against capital punishment

Capital punishment, although not abolished in India, has been restricted in its application, adopting the retentionist approach. While the punishment is awarded as an exception, and not as a rule, it has often come under the scanner for being in violation of the Right to Life, as guaranteed under Article 21 of the Constitution of India. Besides, it has been opined and found that capital punishment does not act as a deterrent against crimes, rendering it as a mere clog in the effectiveness of a the criminal justice system itself. Further, findings of a study conducted by the National Law University (NLU), Delhi have revealed that in India, death penalty is largely awarded to the poor, marginalized and minorities.

Moreover, while there exist arguments on the practicality of this method of punishment, it being more “feasible”, there is sufficient evidence to support the claim that capital punishment does not serve the purpose it is meant to serve. “We kill people who have killed people, to show them, and the world, that killing people is bad”: the inherent flaws in this statement are sufficient for us to examine the redundancy of looking for ways to fight crimes with a bigger crime, rather than putting in place better law enforcement mechanisms to curb such crimes.

The selective nature of  judicial process

The SC verdict comes only a day after the decision of the Bombay High Court in the case of Bilkis Bano, who too was a victim of gang-rape in the post Godhra riots in 2002, saw her family and child murdered, but in whose case the court refused to award the death sentence to the perpetrators of the crime. The two decisions delivered a day apart reflect a shifting stand as far as imposition of the death sentence for sexual offences is concerned.

Furthering such sentiments is a finding that there has been a complete breakdown in the application of the ‘rarest of the rare’ doctrine, developed in Bachan Singh’s case. The doctrine requires Judges to not only consider the brutality of the crime, but also to consider the possibility of reformation of prisoners, to ensure that the alternative option (of life imprisonment) is unquestionably foreclosed. A majority of cases that were examined by a research undertaken by NLU, Delhi, however, evidenced that the issue of reformation was not addressed in the judgments. Such sentencing patterns, therefore, also calls into question, the varied judicial standards in awarding the death penalty. It further, unfortunately, evidences the belief that the Court cannot be seen as a whole, but as a sum of its individual component Judges.

A lost opportunity

The entire approach adopted post the incident reeks of a lost opportunity that was posed not just before the judiciary, but also before the nation. While the incident did bring about the much needed reorientation of the legislation against sexual violence; it ultimately has left a chunk of the population confounded over the certainty that the judicial system has for long sought to achieve. Further, in its observation that the convicts exhibited ‘human lust’ in ‘demonic form’, the Court ignores the fact that rape is not as much a crime of lust, as it is a crime of violence and power. Rapists do use sex organs as the locus of their violence, but rape isn’t about sex, at least not in the sense of being motivated by strong sexual attraction.

Nonetheless, the verdict will to some extent, assuage a sense of retributive public justice. What the judgment is likely to fail at, is address the root causes of sexual violence: patriarchy and misogyny. Bringing about the requisite change in attitude and mindset would certainly take more than the length of a hangman’s halter.


Featured Image Credit: Flickr



This post first appeared on The Indian Economist | For The Curious Mind, please read the originial post: here

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