The Nirbhaya case

Death penalty debate

Print edition : June 09, 2017

(Clockwise from top left) Delhi gang rape convicts Akshay Thakur, Mukesh Singh, Vinay and Pawan Gupta, whose death sentence was confirmed by the Supreme Court on May 5. Photo: PTI

A three-judge bench of the Supreme Court confirms the death sentences against the Nirbhaya case accused, arguing that their crime summoned a tsunami of shock in the collective conscience, and the verdict revives the debate on the death penalty.

IN the first week of May, two significant judgments were pronounced in cases of sexual violence against women, one by a three-judge bench of the Supreme Court and the other by the Bombay High Court. On May 5, the Supreme Court upheld the death sentence awarded by the Delhi High Court to four men convicted of the gang rape and murder of a 23-year-old physiotherapist in New Delhi on December 16, 2012. The previous day, the Bombay High Court awarded life imprisonment to 11 convicted persons found guilty of raping Bilkis Bano during the 2002 Gujarat pogrom. Bilkis Bano was pregnant when she was gang-raped. Her infant daughter and 14 members of her family were murdered by a communal mob seeking revenge for the Godhra train burning incident of February 27, 2002. The High Court refused to award the death penalty to three of the 11 convicts.

The award of the maximum punishment set off a debate on the death penalty and its efficacy as a deterrent to crime. The apex court verdict also raised significant questions about the public and collective conscience as a determining factor for the award of the death sentence.

The events of December 16, 2012, leading to the death of the young woman, who was referred to as Nirbhaya because of her determination to survive despite the brutal assault, led to national outrage and the setting up of a three-member commission comprising the late Justice J.S. Verma, the late Justice Leila Seth and Solicitor General Gopal Subramanium, on December 23, 2012, to look into possible amendments to the criminal laws relating to sexual violence against women. The commission made several recommendations, one of which was fast-tracking of cases of rape and other forms of sexual assault.

The brutality of the Nirbhaya case, detailed in the judgment, led to a demand for the award of the death penalty to all the six convicts, including a juvenile. The victim, who suffered extensive internal injuries, died in a Singapore hospital two weeks after the incident. One of the accused, whose act of rape was established on the basis of forensic evidence as the most brutal, committed suicide in his prison cell a year after his incarceration.

All six convicts belonged to poor sections of society and lived in slum clusters in the capital city. Their poverty, economic background, the age of their parents and dependants, the absence of criminal antecedents, their conduct in jail and the likelihood of their reformation were given as mitigating factors in the appeals. The prosecution’s argument was that the “present case amounts to devastation of social trust and completely destroys the collective behaviour and invites the indignation of society” and that a crime of this nature created a fear psychosis and definitely fell in the category of “the rarest of rare cases”.

The bare facts of the case, as detailed in the judgment and on the basis of statements of both the deceased girl and her friend, who was assaulted when he attempted to save her, left no one in doubt that the crime indeed was brutal in all its ramifications. The two of them were returning after seeing a movie and boarded a private bus where the ordeal began. After they were brutalised, with an iron rod as well, they were thrown out of the bus without any clothes on their bodies. As per the dying declaration of Nirbhaya and the statement of her friend-survivor, the convicts tried to run them over.

Investigations revealed that they tried to destroy evidence by washing the bus and burning the clothes and divided the loot among themselves. On the basis of medical evidence, oral testimony and dying declarations, the judges concluded that the “casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable”. The crime summoned a “tsunami of shock in the mind of the collective”, they said. Dismissing the appeal against the order of the High Court and affirming that the High Court had correctly confirmed the death penalty, Justices Dipak Misra, Ashok Bhushan and R. Bhanumathi concurred that the aggravating circumstances outweighed the mitigating factors, as mentioned in the affidavits of the accused.

Mitigating factors

Among the mitigating factors, it was argued that at least three of the accused had no criminal antecedents and were not hardened criminals, while a fourth one had been falsely implicated on account of being the brother of one of the main accused. Therefore, it was argued that the case need not fall in “the rarest of rare categories”.

The apex court relied on some of its previous death penalty judgments in cases involving the rape of minors where the accused did not have any major criminal antecedents. The nature of the crime was used to determine the gravity of the punishment and to establish the aggravating circumstances. In Shyam Narain vs State (National Capital Territory of Delhi), while hearing an appeal against the death penalty awarded by a lower court to a man convicted of raping a four-year-old, the court observed that the case “irrefragably invites the extreme abhorrence and indignation of the collective. It is anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold.” A review petition was filed but it was dismissed, where a single judge held, weighing the mitigating and aggravating factors, that despite the assertion that the convicted person had a blemish-free record in jail, the “barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years outweigh the mitigating circumstances now brought on record”.

In another case ( State of Maharashtra v s Barat Fakira Dhiwar), as the High Court had acquitted a person after he was awarded the death sentence by a lower court for the rape and murder of a minor, the apex court observed that it was perilously near the region of “the rarest of rare” but as the High Court had acquitted the accused, the apex court altered the sentence to life imprisonment. That courts had a duty when the collective conscience was shocked was illustrated in yet another judgment involving the rape and murder of a minor ( Vasanta Sampat Dupare v s State of Maharashtra), where the apex court had observed that “when the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation the manner in which the brutal crime is committed…. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on society. It is calamitous.”

Justice Bhanumathi, who gave a separate but concurring judgment, observed: “While determining sentence in heinous crimes, judges ought to weigh its impact on society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and society at large.” She said that while the “continuing prominence of reformative approach in sentencing and India’s international obligations have been majorly instrumental in facilitating a visible shift in the court’s view towards restricting imposition of death sentence…. The small window of award of death sentence was left open in the category of ‘rarest of rare’ case in Bachan Singh v s the State of Punjab (1980) by a Constitution Bench where the death sentence was awarded.”

She maintained that while dealing with sentencing, courts had applied the “crime test”, the “criminal test” and the “rarest of rare test” where “the tests examine whether society abhors such crimes and whether such crimes shock the conscience of society and attract intense and extreme indignation of the community”. Courts have further held that “where victims were helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded.” Her judgment listed a few cases where the courts had awarded the death penalty and recalled observations made by the apex court on crimes against women as not ordinary crimes committed in a fit of anger or for property but as social crimes that were capable of disrupting the social fabric and hence deriving harsher punishment.

In Dhananjoy Chatterjee v s the S tate of West Bengal (1994), the court held that “the measure of punishment in a given case must depend on the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals.” There was a huge public outcry in the Dhananjoy Chatterjee case as in the Nirbhaya case. A security guard in Kolkata, Dhananjoy Chatterjee raped and murdered a 14-year-old girl in March 1990. There were other cases that did not trigger a public outcry, yet the death sentence was awarded in them. Justice Bhanumathi stated that the law had clearly set forth the sentencing policy, which had evolved over a period of time, and that the court was “required to draw a balance sheet of aggravating and mitigating circumstances attending to the commission of the offence and then to strike a balance between those aggravating and mitigating circumstances”.

“Society’s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of the public in the administration of the criminal justice system” she observed. Quoting another case ( Om Prakash v s State of Haryana, 1999), she held that the court should respond to the “cry of society and to settle what would be a deterrent punishment for what was an apparently abominable crime”. The judge also noted that the incident “sparked public protest not only in Delhi but nationwide”. She also dwelt on the rising crimes against women as an area of concern pointing to an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime.

Collective conscience

There is no doubt that the December 16 incident was an abomination. It is also a fact that the public outcry, the innumerable candlelight marches and the condemnation of the then political establishment initiated the need for a discourse on sexual violence against women, though it was one that began and stopped with the events of December 16. There was a demand that the juvenile, too, should be subject to the same laws of trial and conviction as the other five and an impression was sought to be created that he was the most brutal of them all, a claim that was not supported by the investigation. The 400-odd-page verdict also did not indicate any particular instance of barbarity committed by the juvenile. The repeated references to the collective conscience did appear disquieting given the lynch mob tendency in cow and other vigilantism and the growing kangaroo court mentality of the public at large. It was another matter that there had not been any let-up in crimes against women.

In fact, there were subsequent cases where the brutality, as in the case of the December 16 gang rape and murder, had been equally abhorrent in degree. The gang rape of a mentally disabled woman in Rohtak the following year and her brutalisation was reminiscent of Nirbhaya’s case. A more recent abomination took place on May 13, when a woman worker of a garment factory in Sonepat was raped, brutalised and killed in a similar manner.

Women’s organisations have been perturbed by the increasing application of the “collective conscience” by self-styled vigilantes as well as its rationalised interpretation by the judiciary. They have been baffled as to why the same yardstick was not applied across various levels of the judiciary, especially in the case of Bilkis Bano, who was not only raped when she was pregnant but was made to witness the murder of her minor daughter and other family members.

The All India Democratic Women’s Association welcomed the Supreme Court judgment and said that it was the certainty of conviction rather than the awarding of the death sentence that was important. It clarified that it was against the death penalty as it was “often arbitrarily asked for and given”. It pointed out that the Bilkis Bano case was equally barbaric and brutal, yet “the High Court awarded life sentence to the 11 accused persons” and the Central Bureau of Investigation did not press for the death sentence. It held that several rape cases had occurred before and after the Nirbhaya case, but were not investigated or the accused prosecuted to obtain convictions and suitable punishments. All crimes against women needed to be dealt with expeditiously, it suggested. At a press conference in New Delhi, Bilkis Bano and her husband Yakub, a dairy farmer, welcomed the verdict in the Nirbhaya case and the Bombay High Court judgment but wondered why the plea for the death penalty in her case was commuted.

Bhaiyalal Bhotmange, the lone survivor of the notorious Khairlanji case in Maharashtra, who passed away in January, must have wondered similarly why the death sentence awarded earlier was commuted to life imprisonment by the Bombay High Court in 2010 in his case. His wife and daughter were stripped and raped and killed by a mob in 2006. In October 2013, a Patna High Court bench, citing lack of evidence, acquitted all the 26 accused, including 16 who had been awarded the death penalty, for murdering 58 Dalits, including a child, in Laxmanpur Bathe in Jehanabad district of Bihar in December 2007. On May 9, 2017, a lower court awarded the death penalty to three persons for the gang rape and murder of a Pune techie in 2009.

The death penalty is not a deterrent as global statistics show; neither do crimes against women come down following the award of the harshest form of punishment. According to the National Crime Records Bureau, the crime rate against women rose from 41.7 to 53.9 between 2011 and 2015. Delhi continues to wear the badge of crime capital, leading as it does with the highest rates of crimes against women, followed by Assam. The issue at hand is that the collective conscience might not get aroused in every case of atrocity against women and humanity in general; the objective of assuaging that and factoring it in awarding the harshest of punishments may not achieve the larger objective of building a sensitive and caring society.

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