The Judiciary

Questions of justice: The judgments in Nirbhaya and Unnao rape cases

Print edition : January 17, 2020

Nirbhaya gang-rape case convicts, clockwise from top left, Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh Singh, whose death sentence has been confirmed by the Supreme Court. Photo: PTI

Kuldeep Singh Sengar, convicted in the Unnao rape case. Photo: PTI

Two judgments, one by the Supreme Court in the Nirbhaya case and the other by a Delhi court in the Unnao rape case involving the former BJP legislator Kuldeep Singh Sengar, raise important questions about the unequal delivery of justice in the country.

IN December, two significant judgments were pronounced by the courts, providing mixed relief to those campaigning for an end to heinous crimes against women.

On December 17, a three-judge bench of the Supreme Court dismissed the last of the pending review petitions in the Nirbhaya case. After the court upheld the death penalty of the accused in the gang rape and murder of a physiotherapist on December 16, 2012, four convicts filed review petitions. The bench, comprising Justices Dipak Misra, R. Banumathi and Ashok Bhushan, upheld the death penalty pronounced by the trial court in September 2013 and the High Court in 2014. Justice Banumathi had observed in the order that the “incident shocks the collective conscience of society”. Collectively, the order observed that the mitigating circumstances outweighed the aggravating factors and the brutality, cruelty and the perverse nature of the crime made it the rarest of rare case.

While dismissing the fourth review petition, the court took into consideration three dying declarations of the victim in which she had named the perpetrators. The multiple dying declarations “inspired the confidence of the court and are credible”, noted the order while dismissing the review petition filed on behalf of Akshay Kumar, the cleaner of the bus in which the act was committed on the night of December 16, 2012. Dismissing the review petition, the Supreme Court held: “We do not find any error apparent on the face of the record in the appreciation of evidence or the findings of the judgment dated 05.05.2017. None of the grounds raised in the review petition call for review of the judgment dated 05.05. 2017.”

Of the six convicts, Ram Singh allegedly committed suicide in March 2013. Another accused, who was a juvenile at the time of the crime, was convicted by the Juvenile Justice Board and sent to a correctional home. He was released after he served his three-year term. Now he is working as a cook. He was made out by the media to be the most brutal among the six accused, a description the Juvenile Justice Board negated, saying there was not enough evidence to prove this. All the four surviving adult convicts filed review petitions against the death penalty. Review petitions of three of them were dismissed in July 2018 and that of the fourth was pending. A.P. Singh, counsel for the convict whose review petition was dismissed by the court, made peculiar arguments about the futility of awarding the death sentence in “Kalyug” and also that life was in any case short owing to the high level of pollution in Delhi. The court did not take this lightly.

The bench observed: “We find it unfortunate that such grounds have been raised in the matter as serious as the present case.” A.P. Singh also remarked that the review petition was dismissed owing to public pressure and the media.

The clamour for the death penalty resurfaced in the context of the gang rape and murder of a veterinary doctor in Hyderabad in November 2019 and the brazen murder of a rape survivor in Unnao, Uttar Pradesh, by her rapists who were out on bail. While the accused in the Hyderabad case were disposed of in a controversial “encounter” on December 6, reminiscent of mediaval justice, the police nabbed the accused in the Unnao case.

Once again, the demand for stringent laws to deal with crimes against women and children was made in and outside Parliament. After the Hyderbad “encounter”, some MPs advocated “public justice” delivery systems such as lynching.

Laws regarding sexual assault were made stringent following the Nirbhaya case. The death penalty was introduced for those convicted of the rape of children under the age of 12 after the gang rape and murder of an eight-year-old in Kathua, Jammu and Kashmir, in 2018. However, more than the efficacy of the death penalty as a deterrent to crimes against women and children, the issue of the efficacy of the criminal justice system should be looked into.

A backlog of cases, including those involving heinous crimes against children, is testimony to the fact it is not the stringency of the law but the delay in investigation, trial and conviction that has accounted for the burgeoning rate of crimes against women and children. Not only this, there is a view that the hangman’s noose is reserved for the working classes while the well-heeled get away with a life sentence as was seen in the case of the former Bharatiya Janata Party (BJP) legislator Kuldeep Singh Sengar, who was sentenced to life imprisonment by a Delhi court. The contention that the poor and the downtrodden get the death penalty was raised by one of the lawyers arguing the review petition, but it was dismissed by the court on the grounds that it “cannot be gone into in this review petition”.

But it is a fact that all the five accused in the gang rape and murder belonged to working class backgrounds with little or no record of any heinous crimes or criminal antecedents. However, the family background, young age, socio-economic backgrounds, unblemished antecedents and chances of reformation were not considered as mitigating factors.

On May 5, 2017, the Supreme Court held that the case was the “rarest of rare cases” given the manner in which the crime was committed. This was the underlying principle in rejecting the review petition. Should justice be as brutal as the crime itself is a question that needs to be asked.

While dismissing an appeal of a 23-year-old man convicted for 10 years by an exclusive court trying cases under the Protection of Children from Sexual Offences (Amendment) Act, 2012, (POCSO) on June 30, 2018, for attempting to rape a child in Mumbai, the Bombay High Court on December 25, 2019, held that “this was a case where there was no question of reformation of the appellant as he was quite a grown up male who knew the consequences of his act”. The order stated that “the dicta is loud and clear as to how such offences are required to be dealt with who are menace to the civilised society and therefore they should be mercilessly and inexorably punished”.

The Sengar conviction

On December 20, 2019, a Delhi court awarded a life sentence to Sengar and imposed a fine of Rs.25 lakh for the rape of a minor girl in Unnao, Uttar Pradesh, in 2017. On December 16, Sengar was convicted for rape under Section 376 of the Indian Penal Code and POCSO. Additional District judge Dharmesh Sharma described the testimony of the rape survivor as unblemished, truthful and “proved to be of sterling quality”. Like the Nirbhaya incident, which drew public opprobrium, the rape of the minor girl, the intimidation of her family members by Sengar’s cronies, the death of her father in judicial custody in April 2018 and that of her two relatives in July 2019, all under suspicious circumstances, evoked outrage.

Sengar had sexually assaulted the girl in June 2017. She was 16 years old at that time. She alleged she was also gang-raped by his brother and two of his aides. Sengar’s influence was such that it took two and a half months for the victim to muster her courage and approach the police. It was after the girl attempted suicide in front of the Chief Minister’s residence almost a year after the incident that the case was handed over to the Central Bureau of Investigation (CBI) by the State government. Sengar was charged and arrested following an order of the Allahabad High Court.

In July 2019, in a suspicious road accident, the rape survivor was grievously injured while two of her relatives died. Foul play was alleged and a case registered against Sengar for criminal conspiracy. The sexual assault case, which was being heard in Lucknow, was transferred to Delhi in August following a Supreme Court directive. The orders for the transfer were given after the victim wrote to the Chief Justice of India saying that she for her life and that of her family members. All cases pertaining to the Unnao rape case were transferred to Delhi with directions from the apex court that the trial be completed within 45 days. The four cases related to the suspicious death of the survivor’s father in judicial custody, his arrest in an illegal arms case, the gang rape of the survivor by three people, and the charge of conspiracy against Sengar in the road accident case on July 28 where the victim sustained near-fatal injuries.

Such was the influence of Sengar in the government of BJP Chief Minister Yogi Adityanath in Uttar Pradesh that the girl delayed complaining to the police after the assault. The Delhi court took cognisance of the reasons for the delay and accepted them. It observed that as soon as the case was registered, a “vicious tirade” was “orchestrated” by Sengar against the survivor’s father and uncle. There were contradictions in the statements of the defence witnesses, and the court also observed that they were “tainted and interested witnesses” who went out of their way to “support Sengar due to his political might”.

Perhaps keeping all these factors in mind, the court directed that the girl and her family be given protection and a different identity if need be. It observed that the investigation suffered owing to “patriarchal approaches that tended to brush issues of sexual violence against children under the carpet apart from exhibiting a lack of sensitivity and humane approach”.

Apart from behavioural biases, there were procedural infirmities, too. The investigation was not done by a woman police officer as mandated under POCSO. The CBI took over the case from the Uttar Pradesh Police in April 2018 but filed a charge sheet only in October 2019. The Delhi court order castigated the CBI for recording the statements of the girl in the CBI office without bothering about the “kind of harassment, anguish and re-victimisation that occurs to a victim of sexual assault”. It also pulled up the investigating agency for leaking out sensitive information to the media in order to “put a cloud on the case of the complainant”.

Women’s organisations welcomed the conviction of Sengar. The All India Democratic Women’s Association stated that the remaining cases should be decided speedily, all involved “appropriately punished, including the police who deliberately delayed the case and acted as per the directions of the accused and his associates”.

Unlike the Nirbhaya gang rape and murder case, which sparked widespread public protests demanding extreme punishment for the perpetrators and which the central BJP leadership used to good effect as it was in the opposition at the time, the Unnao sexual assault case did not elicit the same kind of political outrage from the BJP. Its reaction was lukewarm to the gang rape and murder in Kathua.

With more and more instances of people in public positions getting involved in crimes against women and children, the impartiality of the ruling party, the police and the criminal justice system will willy-nilly find itself under the spotlight, and increasingly so.

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